J-S54039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    ANTOINE MAURICE BAKER                       :
                                                :
                       Appellant                :    No. 355 WDA 2017

            Appeal from the Judgment of Sentence January 27, 2017
                In the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0000557-2015


BEFORE:      OTT, MOULTON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED AUGUST 30, 2017

        Appellant Antoine Maurice Baker appeals from his judgment of

sentence     of     twenty-four      to   seventy-two    months’    imprisonment    for

possession     with    intent   to    deliver   a   controlled   substance   (“PWID”).1

Appellant’s sole issue on appeal is whether his sentence was excessive

because the trial court disregarded the stipulation in Appellant’s guilty plea

agreement to treat this conviction as his first PWID offense. We affirm.

        Appellant was arrested on March 12, 2015 and charged with PWID and

other offenses. On August 17, 2015, Appellant pled guilty to one count of

PWID for possessing 0.33 grams of heroin with intent to deliver.                   The


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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remaining charges were nol prossed, and the court scheduled sentencing for

October 29, 2015.       Appellant failed to appear on that date, and the court

issued a bench warrant for his arrest. On January 17, 2017, Appellant was

arrested on the bench warrant. On January 27, 2017, the court sentenced

Appellant to the aforementioned term of imprisonment. The sentence was

below     the   standard     range     of      the   Sentencing   Guidelines. 2   The

Commonwealth waived the Recidivism Risk Reduction Incentive (“RRRI”)

restrictions, and the court entered an RRRI minimum of 18 months.

        On February 3, 2017, Appellant filed a post-sentence motion alleging

that the trial court abused its discretion by imposing an excessive sentence.

On February 6, 2017, the court denied Appellant’s motion. Appellant filed a

timely notice of appeal, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.

        Appellant raises a single issue in this appeal:

           Whether the sentenc[ing] court abused its discretion and
           imposed a manifestly excessive and unfairly severe
           punishment by imposing a term of incarceration upon []
           Appellant, of not less than two (2) years nor more than six
           (6) years[’] imprisonment for [his PWID] conviction where
           the plea agreement was that [Appellant’s] conviction was
           to be treated as a first offense and not as a subsequent
           offense.


____________________________________________


2
   Appellant’s offense gravity score was six, and his prior record score was
five, making the standard sentencing range twenty-seven to thirty-three
months.



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Appellant’s Brief at 7.   In other words, Appellant complains that the trial

court improperly treated Appellant’s conviction as a second PWID offense,

even though his guilty plea agreement required the court to treat it as a first

PWID offense. Appellant is not entitled to relief.

      This Court has held:

         Challenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [W]e conduct 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, 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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted). The Rule 2119(f) statement

         must specify where the sentence falls in relation to the
         sentencing guidelines and what particular provision of the
         Code is violated (e.g., the sentence is outside the
         guidelines and the court did not offer any reasons either on
         the record or in writing, or double-counted factors already
         considered). Similarly, the Rule 2119(f) statement must
         specify what fundamental norm the sentence violates and
         the manner in which it violates that norm . . . .



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Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id. (emphasis in original).

      Here, Appellant timely appealed, preserved the issue in his post-

sentence motion and included a Pa.R.A.P. 2119(f) statement in the brief.

See Evans, 901 A.2d at 533. Further, Appellant raises a substantial claim

by arguing that the trial court disregarded the terms of his guilty plea

agreement by sentencing him as a second-time PWID offender. Accordingly,

we examine the merits.

         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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted). A sentence may be found unreasonable if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d

957, 964 (Pa. 2007) (citation omitted). These general standards mandate

that a sentencing court impose a sentence “consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of



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the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S. § 9721(b).

     The maximum sentence for a first PWID offense involving heroin is

fifteen years’ imprisonment. See 35 P.S. § 780-113(f)(1). In the event of a

second PWID conviction involving heroin, the court may sentence the

defendant up to twice the term for a first offense, or a maximum of thirty

years’ imprisonment. See 35 P.S. § 780-115(a).

     The record establishes that Appellant’s sentence was not affected by

the fact that it was his second PWID offense.        During sentencing, the

following exchange took place:

        THE COURT: Now I’ve got to do some math. Mr. Baker, in
        looking at this case, number one, this is a second PWID?

        MR. STRAUB [Appellant’s counsel]: Your Honor, as part of
        the plea agreement, it was to be sentenced as a first.

        THE COURT: But technically it is a second.

        MR. STRAUB: Yes, Your Honor.

        THE COURT: I won’t go beyond that. You’ve got some
        substantial family issues.

N.T., 1/27/17, at 9 (emphasis added).     Thus, the court made clear that it

gave no weight to the fact that this was Appellant’s second PWID conviction.

Moreover, the court sentenced Appellant to a minimum below the standard

guideline range for a first PWID offense, see n.1, supra, and his maximum

was far below fifteen years (the maximum for a first PWID offense) and

thirty years (the maximum for a second PWID offense). For these reasons,

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Appellant has no basis for arguing that the court disregarded the terms of

his guilty plea agreement in the course of imposing sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2017




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