J-S31019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

ZAKARY JAMES WALLS

                             Appellant                   No. 1034 MDA 2015


             Appeal from the Judgment of Sentence May 14, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000600-2014


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                     FILED MAY 16, 2016

        Zakary James Walls brings this appeal from the judgment of sentence

imposed on May 14, 2015, in the Court of Common Pleas of Lycoming

County.1 A jury convicted Walls of aggravated assault (attempt/cause bodily

injury to law enforcement officer), simple assault, resisting arrest, and

unlawful restraint.2        Prior to trial, Walls pleaded guilty to five counts of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On July 9, 2015, the trial court entered an order dated July 6, 2015,
amending the May 14, 2015 sentencing order, as follows: “The third
paragraph shall be Count 13, Resisting Arrest, a misdemeanor of the second
degree, as opposed to Count 3. In all other respects, this Court’s Order of
May 14th, 2015, shall remain in full force and effect.”
2
  18 Pa.C.S. §§ 2702(a)(3), 2701(a)(1), 5104, 2902(a)(1), respectively.
The Commonwealth originally charged Walls in Count 11 under 18 Pa.C.S. §
2702.1(a) (“Assault of law enforcement officer.”). By order entered August
(Footnote Continued Next Page)
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possession with intent to deliver marijuana, two counts of criminal use of a

communication facility, possession of a controlled substance (marijuana),

and two counts of possession of drug paraphernalia.3 The trial court

sentenced Walls to an aggregate term of two and one-half to ten years’

incarceration, followed by a five-year term of probation. Both issues raised

in this appeal challenge the discretionary aspects of the sentence.    Based

upon the following, we affirm.

      The charges against Walls arose as a result of two controlled buys of

marijuana on April 2, 2014, and April 3, 2014.       The first buy utilized a

confidential informant, and the second buy utilized an undercover police

officer. The second controlled buy also involved an assault upon the

undercover police officer. See Affidavit of Probable Cause, 4/3/2014. The

charges against Walls were resolved by a guilty plea and jury trial, as stated

above.

      The trial court summarized the sentence imposed on Walls, as follows:

      On May 14, 2015, the Court sentenced [Walls] to two and a half
      years to 10 years of incarceration for Aggravated Assault
      (attempt/cause bodily injury to law enforcement officer), three
      months to 24 months of incarceration for Resisting Arrest, one
      month to 24 months of incarceration for Delivery of Marijuana,
      and one month to 24 months of incarceration for another count
                       _______________________
(Footnote Continued)

7, 2014, Count 11 was amended to charge Walls with 18 Pa.C.S. §
2702(a)(3), a felony of the second degree. See Order, 8/7/2014.
3
  35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 7512(a), 35 P.S. § 780-
113(a)(16), and 35 P.S. § 780-113(a)(32), respectively.



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     of Delivery of Marijuana. The Resisting Arrest sentence is
     concurrent with the Aggravated Assault sentence. The Delivery
     of Marijuana sentences are concurrent with one another and
     concurrent with the Aggravated Assault sentence. The Court
     sentenced [Walls] to 30 months of probation for Criminal Use of
     a Communication Facility and 30 months of probation for
     another count of Criminal Use of a Communication Facility. The
     Criminal Use sentences were consecutive to each other and
     consecutive to the Aggravated Assault sentence.

     Aggravated Assault (attempt/cause bodily injury to law
     enforcement officer) is a felony of the second degree. 18
     Pa.C.S. § 2702(b). The maximum term of imprisonment for a
     felony of the second degree is 10 years. 18 Pa.C.S. § 106(b)(3).
     Therefore, [Walls’] sentence of incarceration for a maximum of
     10 years is within the statutory limit.

                                  ****

     [Walls] had a prior record score of zero. In this case, the
     Deliveries of Marijuana have an offense gravity score of three,
     which makes the standard range restorative sanctions to a
     minimum of one month of confinement. Thus, the sentences of
     one month to 24 months of incarceration for the Deliveries are
     within the standard range. Criminal Use of a Communication
     Facility has an offense gravity score of five, which makes the
     standard range restorative sanctions to a minimum of nine
     months of confinement. Thus, the sentences of probation for 30
     months for the Criminal Uses are within the standard range.
     Resisting Arrest has an offense gravity score of two, which
     makes the standard range restorative sanctions. If a person is
     convicted of Resisting Arrest and has a prior record score of
     zero, a court can sentence that person to up to three months
     minimum confinement and still be within the aggravated range
     of the guidelines. Thus, the sentence for Resisting Arrest is in
     the aggravated range. In this case, the Aggravated Assault has
     an offense gravity score of six, which makes the standard range
     three months minimum confinement to 12 months minimum
     confinement. If a person has a prior record score of zero and is
     convicted of an offense with a gravity score of six, a court can
     sentence that person to up to 18 months of minimum
     confinement and still be within the aggravated range of the
     guidelines. [Walls’] sentence of two and a half years to 10 years
     for Aggravated Assault is above the aggravated range.

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Trial Court Opinion, 7/31/2015, at 1, 3.         Following sentencing, Walls filed

this timely appeal, accompanied by a Pa.R.A.P. 1925(b) statement.

       Walls raises two questions for our review:

       Was it an abuse of discretion when the trial court imposed a
       sentence on [Walls] of 2½-10 years for the offense of Assaulting
       an Officer of the Law,[4] when such sentence, while within the
       statutory limit, exceeded the aggravated range of the sentencing
       guidelines for defendants with a [Prior Record Score] of “0” by a
       full 12 months?

       Was it manifestly unreasonable for the trial court to justify in
       part its sentence by lumping the defendant in with a group of
       out-of-county drug dealers primarily engaged in the distribution
       of cocaine and heroin — a group particularly stigmatized in the
       local community at the time — when in fact [Walls’] primary
       purpose for residing in the community was his enrollment and
       attendance at a local college, with the distribution of marijuana
       being a mere means of supplementing his income?

Walls’ Brief at 7.5



____________________________________________


4
   Walls’ brief states that that he was sentenced to 2½ to 10 years’
incarceration “for the first degree felony of assaulting a law enforcement
officer.” Walls’ Brief at 14. See also id. at 12. However, as we have noted
at Footnote 2, supra, Walls’ 2½-to-10 year sentence was imposed on the
charge of aggravated assault (attempt/cause bodily injury to law
enforcement officer), 18 Pa.C.S. § 2702(a)(3), a felony of the second
degree.
5
  Walls filed a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) together with his June 15, 2015 notice of appeal. In
his concise statement, Walls claimed “[t]he trial court abused its discretion
in imposing [a] sentence upon [Walls] in excess of the aggravated range of
the guidelines when no reasonable basis for this departure existed.” Walls’
Concise Statement, 6/15/2015.



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      In reviewing Walls’ sentencing claim, we are guided by the following

principles.   Challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.   Commonwealth v. Sierra,

752 A.2d 910 (Pa. Super. 2000). 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. § 9781(b).

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

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. Mann, 820 A.2d

788 (Pa. Super. 2003).

      Here, Walls failed to object to his sentence at imposition or file a

timely motion to reconsider and modify sentence.         On June 5, 2015,

following Walls’ May 14, 2015, sentencing hearing, trial counsel filed a

“Motion to Modify Sentence Nunc Pro Tunc.”        The trial court denied the

motion, concluding in the accompanying opinion:

      [Walls’] implied request for nunc pro tunc relief is denied
      because Defense Counsel [who was present at the sentencing
      hearing] knew that the sentence was above the aggravated
      range, and the Court advised [Walls] that post sentence motions
      had to be filed within 10 days. The Court does not have

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       jurisdiction to consider the merits of the “Motion to Modify
       Sentence Nunc Pro Tunc” because it was filed more than 10 days
       after the imposition of sentence.

Opinion and Order, 6/11/2015, at 3. Accordingly, by failing to file a timely

motion to modify his sentence, Walls has waived his challenge to the

discretionary aspects of his sentence. See Mann, supra.

       In any event, even assuming, without deciding, that Walls’ claim raises

a substantial question,6 no relief would be due.

       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,
____________________________________________


6
    Walls’ Rule 2119(f) statement states, in part:

       The trial court placed great emphasis on the need to impose the
       sentence it did in order to send a message to other drug dealers
       in the community that [Walls’] actions in assaulting the
       undercover officer involved in the controlled buy were not to be
       tolerated. The court further based its sentence on a perceived
       lack of remorse demonstrated by the defendant as evidenced by
       his mannerisms during both the trial and the sentencing, as well
       as the three positives for marijuana use he produced while on
       supervised bail. The trial court also seemed to discredit any
       notion that the defendant’s behavior stemmed from either
       behavioral health issues or substance abuse issues, instead
       attributing his actions primarily to what it believed to be his
       sense of “arrogance.”

       [Walls] therefore avers that he has raised a substantial question
       and requests review of the discretionary aspects of his sentence.

Walls’ Brief at 10–11 (Statement of Reason For Allowance of Appeal of
Discretionary Aspects of Sentence).



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     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).

     This Court’s review of the discretionary aspects of a sentence is

governed by the statutory mandates of 42 Pa.C.S. § 9781. For sentences

that fall outside of the guidelines, the appellate court may vacate the

sentence and remand the case to the sentencing court only if the sentence is

“unreasonable.” 42 Pa.C.S. § 9781(c)(3). However, the guidelines have no

binding effect, and do not “predominate over other sentencing factors.”

Commonwealth v. Walls, 926 A.2d 957, 964–965 (Pa. 2007).

     In reviewing the record, we must consider: (1) the nature and

circumstances of the offense and the history and characteristics of the

defendant; (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) the findings upon

which the sentence was based; and (4) the guidelines promulgated by the

commission. 42 Pa.C.S. § 9781(d).

     A sentence may be found unreasonable if it fails to properly
     account for these four statutory factors. A sentence may also be
     found unreasonable if the “sentence was imposed without
     express or implicit consideration by the sentencing court of the
     general standards applicable to sentencing.” 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 the victim and on
     the community, and the rehabilitative needs of the defendant.”
     42 Pa.C.S. § 9721(b).


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Sheller, supra, 961 A.2d at 191 (citation omitted).

      The trial court justified the sentence with reasons placed on the record

at the sentencing hearing. In its opinion in support of its decision, the trial

court explained:

      The Court reviewed [Walls’] pre-sentence investigation report
      and stated the standard ranges for the offenses. N.T., 5/14/15,
      at 2-5. The Court also stated that the sentence was outside of
      the aggravated range. Id. at 25-26. The Court considered
      [Walls’] character and his rehabilitative needs. The Court
      believes that if [Walls] had truly accepted responsibility for the
      crimes, he would not have waited as long as he did to seek
      treatment for drug abuse. Id. at 22-23. The Court found that
      [Walls’] post-conviction use of marijuana showed that he was
      not remorseful. Id. at 24. In addition, the Court found [Walls] to
      be arrogant and unashamed of the offenses that he committed.
      Id. at 24, 28. A lesser sentence would not “send a message”
      that [Walls] need[s] to change....” Id. at 26.

      The Court also considered the circumstances and impact of the
      offenses. The Court believes that [Walls] was trying to send a
      message to other drug dealers. Id. at 23. The Court found it
      significant that law enforcement was the victim and that [Walls]
      showed “disrespect to law enforcement.” Id. at 25, 28. The
      Court believes that “a sentence of any less depreciates the
      seriousness of what [Walls] did that day and the effect that it
      has on the law enforcement community....” Id. at 28.

Trial Court Opinion, 7/31/2015, at 3–4.

      At the sentencing hearing, the trial court considered the background

information in the Presentence Investigation Report. See N.T., 5/14/2015,

at 4–5, 21. The court heard the testimony of Walls’ grandmother, and Walls

exercised his right to allocution and apologized for his actions.   The court

noted that Walls did not acknowledge his need for drug treatment until

shortly before sentencing. The court pointed out Walls had tested positive


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for marijuana three times while on bail release, including twice after his

conviction, with the most recent positive test occurring one week before

sentencing.   Id.   See also id. at 5.      The court found Walls lacking in

remorse, and also noted his demeanor that “he’s above it all.” See id. at

24–25.    The court also considered the nature and circumstances of the

offenses, stating “fights between drug dealers won’t be tolerated,” and

noting that “an undercover [officer] is putting [his/her] life on the line.” Id.,

at 25.   The court cited Walls “arrogance,” and concluded that any lesser

sentence would “depreciate[] the seriousness of what [Walls] did that day

and the effect that it has on the law enforcement community and the safety

of the community in general[.]” Id. at 28.

      Based on our review of the record, and in light of the applicable

standard of review, we would find the court’s upward departure from the

sentencing guidelines to be properly supported by the court’s consideration

of relevant sentencing factors, and reasonable under Section 9781(d).

      Accordingly, as Walls did not preserve his sentencing claim by filing a

timely post-sentence motion, his challenge to the discretionary aspects of

the sentence is waived, and, in any event, would fail on the merits.

Therefore, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2016




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