J-A20030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SETH WAYNE PRICE                           :
                                               :
                       Appellant               :   No. 1289 WDA 2017

            Appeal from the Judgment of Sentence January 29, 2016
      In the Court of Common Pleas of Bedford County Criminal Division at
                        No(s): CP-05-CR-0000006-2015,
              CP-05-CR-0000123-2015, CP-05-CR-0000526-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 07, 2018

        Seth Wayne Price appeals nunc pro tunc from the judgment of sentence,

entered in the Court of Common Pleas of Bedford County, after entering a

negotiated open guilty plea to two counts of possession of gas precursors,1

two counts of possession with intent to deliver methamphetamine (PWID),2

two counts of operating a methamphetamine laboratory,3 two counts of risking

catastrophe,4 and one count each of simple possession,5 possession of drug
____________________________________________


1   35 P.S. § 780-113.1(a)(3).

2   35 P.S. § 780-113(a)(30).

3   35 P.S. § 780-113.4(a)(1).

4   18 Pa.C.S. § 3302(b).

5   35 P.S. § 780-113(a)(16).
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paraphernalia,6 driving under the influence of a controlled substance (DUI),7

resisting arrest,8 and simple assault.9 Upon careful review, we affirm.

        This appeal stems from Price’s operation of a methamphetamine

laboratory and related activity. First apprehended in early 2015 on charges

pertaining to manufacturing and intending to distribute methamphetamine,

Price entered a guilty plea on February 2, 2015 to the following charges: (1)

possession of precursors, (2) PWID, (3) operating a methamphetamine

laboratory,     (4)     risking    catastrophe,   (5)   simple   possession   of

methamphetamine, (6) possession of drug paraphernalia, and (7) DUI. This

plea derived from a traffic stop wherein Price appeared sluggish, with

bloodshot eyes. When the officer asked Price if he had any weapons on him,

in the process of reaching into his pocket for his pocketknife, he dropped a

plastic container containing hypodermic needles.         Price admitted he had

recently used heroin. Also on his person was one gram of methamphetamine.

When searched, Price’s car contained a one-pot reaction vessel used to

produce methamphetamine, household lye, an instant cold pack, four pairs of

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6   35 P.S. § 780-113(a)(32).

7   75 Pa.C.S. § 3802(d)(1)(i).

8   18 Pa.C.S. § 5104.

9   18 Pa.C.S. § 2701.




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pliers, and eighteen inches of clear tubing. All of these are consistent with the

manufacturing of methamphetamine.

        Price made bail on February 2, 2015. He provided his probation officer

a positive urine test for amphetamines on February 13, 2015, and failed to

appear for his bail reporting appointment on February 27, 2015. After an on-

duty police officer observed Price driving to various locations attempting to

buy Claritin-D,10 on March 2, 2015, police executed a search warrant at Price’s

residence, which uncovered that Price had again commenced the operation of

a methamphetamine laboratory.             Inside the residence, officers discovered

Claritin-D, Coleman fuel, iodized salt, a drain opener, and instant cool packs,

along with 230 grams of methamphetamine. During the search, Price jumped

out of a window and fled the scene.              Others in the house, future co-

defendants, asserted during the search that Price threatened them into buying

various supplies for the production of methamphetamines.

        Price entered his second guilty plea to the following: (1) possession of

gas precursors, (2) PWID, (3) operating a methamphetamine laboratory, (4)

risking catastrophe, (5) resisting arrest, and (6) simple assault11 on December

22, 2015. On January 29, 2016, the trial court sentenced him to an aggregate

term of 14 to 32 years’ imprisonment. Price filed post-sentence motions on

February 8, 2016, which the trial court denied.          On March 18, 2016, trial
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10Claritin-D is a commonly sought-after drug used in the manufacturing of
methamphetamine.

11   Price’s simple assault charge arose from an altercation with another inmate.

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counsel filed a notice of appeal, request for transcript and application to

proceed in forma pauperis. On July 5, 2016 and September 8, 2016, counsel

sought extensions of time to file an appellate brief. On November 14, 2016,

Price’s appeal was dismissed for failure to file a brief. On May 9, 2017, the

court reinstated Price’s appellate rights nunc pro tunc. Subsequently, Price

filed his notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.       He presents the following issues for our

review:

      1. Whether the trial court erred and abused its discretion by the
         imposition of a clearly unreasonable and manifestly excessive
         sentence by sentencing Price to consecutive terms of statutory
         maximums, without consideration of relevant sentencing
         criteria as set forth in 42 Pa. C.S.A. § 9721(b)?

      2. Whether the trial court erred and abused its discretion by the
         imposition of consecutive terms of statutory maximum
         sentences, which resulted in wholly disparate and recognizably
         disproportionate sentences between similarly situated co-
         defendants without justification, as each co-defendant received
         a deviation below the standard range of the sentencing
         guidelines for the same offense?

Appellant’s Brief, at 4 (edited for clarity).

      Our standard of review regarding challenges to the discretionary aspects

of sentencing is well-settled:

      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 judgement.
      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.


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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

        The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004). To determine if this Court may review the discretionary aspects of a

sentence, we employ a four-part test, examining: (1) whether the appellant

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify the sentence; (3)

whether the appellant’s brief includes a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of sentencing pursuant to 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.12 Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super.    2013).       An    appellant     must    satisfy   all   four   requirements.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

        Here, Price filed a timely notice of appeal nunc pro tunc and preserved

his    discretionary   challenge     by   way     of   a   post-sentence    motion   for

reconsideration of sentence. Price also included in his brief a Rule 2119(f)

concise statement of reasons for allowance of appeal. See Brief of Appellant,

at 11-15.    Having determined Price has satisfied the necessary procedural




____________________________________________


12   42 Pa.C.S.A. §§ 9701-9799.75.

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dictates, our analysis turns to whether he has raised a substantial question

regarding 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 [Rule] 2119(f) statement to
      determine whether a substantial question exists.

Commonwealth v. Diehl, 140 A.3d 33, 34-45 (Pa. Super. 2016) (internal

citations omitted).

      Price avers in his Rule 2119(f) statement that the trial court abused its

discretion in sentencing him to an aggregate term of 14 to 32 years’

imprisonment comprised of two consecutive sentences, because that

constituted “an aggregate sentence that was so manifestly excessive as to

constitute too severe a punishment.” Appellant’s Brief, at 14.

      It is well settled that defendants who enter guilty pleas may only

challenge the legality of their sentences and validity of their pleas on appeal.

Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017).

However, some defendants retain the right to challenge the discretionary

aspects of their sentence.

      A defendant, who enters a guilty plea which does not involve a
      plea bargain designating the sentence to be imposed, cannot be
      said to have granted the sentencing court carte blanche to impose
      a discriminatory, vindictive or excessive sentence so long as the

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      legal limits are not exceeded. Obviously, the entry of a guilty plea
      does not preclude a petition for allowance of appeal of
      discretionary aspects of a sentence subsequently imposed.

Id., quoting Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super.

1994) (emphasis omitted).

      In Price’s Rule 2119(f) statement, he claims, generally, that:         (1)

consecutive terms of maximum sentences without regard to his rehabilitative

needs resulted in a manifestly excessive sentence; (2) the trial court failed to

consider his individualized circumstances; (3) the sentencing court imposed a

sentenced in the aggravated range without considering mitigating factors; and

(4) the trial court focused solely on the seriousness of the offense in crafting

his sentence.

      Preliminarily, we note, sentences must be “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). In reviewing the record, this Court

must consider the nature of the offense, along with the history and

characteristics of Price; the opportunity of the sentencing court to observe

Price; the findings upon which the sentence was based; and sentencing

guidelines. See 42 Pa.C.S. § 9781(d).

      The imposition of consecutive rather than concurrent sentences lies

within the sound discretion of the trial court. Commonwealth v. Johnson,

961 A.2d 877, 880 (Pa. Super. 2008).        Further, the court’s discretion in

imposing consecutive rather than concurrent sentences does not raise a

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substantial question regarding the discretionary aspects of sentencing.

Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010).

Rather, “the key to resolving the preliminary substantial question inquiry is

whether the decision to sentence consecutively raises the aggregate sentence

to, what appears on its face to be, an excessive level in light of the criminal

conduct at issue in the case.”    Id. at 587; see also Commonwealth v.

Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (finding that “[t]he

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh”). Accordingly, we find Price’s claim

that his aggregate sentence of 14 to 32 years’ imprisonment raises a

substantial question; however, his claim warrants him no relief.

      Price’s consecutive sentences are reasonable in light of his prior

convictions, repeated criminal behavior while on bail for the same crimes, and

complete disregard for the community’s safety in running an inherently

dangerous methamphetamine laboratory. The consecutive sentences are not

unduly harsh, and the aggregate sentence imposed was not inappropriate or

contrary to a fundamental norm underlying the Sentencing Code.

      Price also argues that this imposition of consecutive statutory

maximums on him was erroneous because his co-defendants’ sentences were

comparatively light. This relates to the individualized nature of sentencing.

See generally Luketic, supra.       Price’s argument that his sentence was

disproportionate to his “similarly situated” co-defendants is without merit

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because, in fact, they were not similarly situated. The trial court found Price

to be the “major player” in this instance. N.T. Sentencing Hearing, 1/29/16,

at 28.    Further, no other defendant pled guilty to the operation of a

methamphetamine lab and while on bail for that charge established another

laboratory, while testing positive for methamphetamines. To argue the co-

defendants were “similarly situated” is wholly inaccurate.

      Moreover, Price’s argument that the trial court sentenced him to

consecutive statutory maximum sentences is also inaccurate.           The judge

informed Price in open court, before he signed each of his pleas, of the possible

maximum sentences. In the first matter, post-DUI, the court asked, “do you

understand for all of the offenses put together that a maximum sentence could

be imposed of . . . a rough estimate of thirty-five years?” N.T. Guilty Plea

Hearing, 2/2/15, at 8. Price stated he understood. Id. In the subsequent

case, the court informed Price of the maximum penalties it could impose on

him for PWID, possession of gas precursors, operating a methamphetamine

laboratory, risking catastrophe, and resisting arrest, that, even if imposed

concurrently, would have been a maximum of fifteen years.              See N.T.

Sentencing Hearing, 12/22/15, at 9-10.       The court asked, “[a]nd do you

understand that I could impose these sentences consecutive to the sentence

you’ve already pled guilty to?” Id. at 11. Price stated he understood. Id.

Thus, while Price received a sentence of 14 to 32 years’ imprisonment, the




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statutory maximum was 50 years. As such, Price’s sentence was within the

sentencing guidelines and did not violate any norms of sentencing.13

       Price next argues that the trial court’s sentence failed to account for

Price as an individual and consisted of statutory maximums “without

consideration of relevant sentencing criteria.” Appellant’s Brief, at 16. In so

doing, Price claims, the trial court failed to consider his rehabilitative needs

during sentencing. Id. at 13. First, “[a] claim that a sentencing court ignored

the foregoing mandates and sentenced a defendant without taking into

account his or her character and background . . . raises a substantial question

that the sentence is inappropriate under the Sentencing Code.”         Luketic,

supra, at 1162, citing Commonwealth v. Goggins, 748 A.2d 721, 727-28

(Pa. Super. 2000). In addition, a claim that the sentencing court failed to

consider a defendant’s rehabilitative needs also raises a substantial question.

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).

Therefore, we proceed with a review of Price’s second issue on the merits.

       The trial court considered Price as an individual in its sentencing,

including his rehabilitative needs. The court was equipped with a Presentence

Investigation Report (PSI). As evidenced by the trial court’s statements at

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13 We note that generally, a claim that a defendant’s sentence exceeds the
statutory maximum challenges the legality of the sentence. Commonwealth
v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (“Claims that the sentence
fell ‘outside of the legal parameters prescribed by applicable statute’”
constitute challenges to the legality of a sentence.”). Price’s sentence does
not exceed the statutory maximum, and thus, we need not address whether
his sentence is illegal.

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sentencing, Price’s prior record, two robbery convictions and one burglary

conviction, contributed to his sentence. In addition, Price committed crimes

while he was out on bail after pleading guilty to essentially the same activities.

He also tested positive for methamphetamine while out on bail, and assaulted

another inmate while incarcerated.      These factors led to an individualized

sentence for Price; each incident indicated to the trial court that a longer

sentence was necessary. The court stated

      [w]hen I have to view the things on the gravity of the offenses,
      the rehabilitative needs of the defendant. And . . . the protection
      of the public. I mean what really weighs on me here is the
      protection of the public [rather] than the gravity of the offenses
      . . . I think your choices are reckless. . . . I think your actions
      constitute you as [a] danger to the public.

N.T. Sentencing Hearing, 1/29/16, at 33 (emphasis added). Thus, the trial

court’s decision was consistent with the protection of the public, the gravity

of the offenses as they related to the impact on the community, and the

rehabilitative needs of the defendant. See 42 Pa.C.S. § 9721(b). Accordingly,

Price’s arguments that his sentence was not individualized and/or that the trial

court focused only on the seriousness of the offense is without merit.

Accordingly, we find no abuse of discretion.

      Judgment of sentence affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




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