J-A26031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    GABRIEL PIO JESUS SHULL

                             Appellant                 No. 425 MDA 2017


            Appeal from the Judgment of Sentence January 25, 2017
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001772-2014


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                           FILED JANUARY 11, 2018

        Appellant, Gabriel Pio Jesus Shull, appeals from the judgment of

sentence of forty-five to ninety months of incarceration, imposed January 25,

2017, following a bench trial resulting in his conviction for robbery, unlawful

restraint, simple assault, possession of an instrument of crime, and possession

of drug paraphernalia.1        We vacate Appellant’s sentence and remand for

resentencing.

        A prior panel of this Court discussed the facts and procedural history of

this matter at length in a precedential opinion, and we need not repeat them

at length here. See Commonwealth v. Shull, 148 A.3d 820, 825–28 (Pa.

Super. 2016), reargument denied (Nov. 23, 2016). Suffice it to say, Appellant

____________________________________________


1 See 18 Pa.C.S. §§ 3701(a)(1)(ii), 2902(a)(1), 2701(a)(1), 907(a), and 35
P.S. § 780–113(a)(32), respectively.
J-A26031-17



was arrested and charged in November 2014, as a result of the violent

gunpoint robbery of the complainant. Id.

     Following a bench trial, the court convicted Appellant of all charges and

made a finding of fact that Appellant possessed a deadly weapon during the

commission of his crimes.     Id. at 829.     The prior panel described the

sentencing as follows:

     During the sentencing hearing of August 11, 2015, the court made
     a determination that the Deadly Weapon Possession sentencing
     enhancement applied under the facts proven at trial, but refused
     to apply the more severe Deadly Weapon Used enhancement
     sought by the Commonwealth.            The court applied the
     enhancement matrix as its sentencing starting point and, from
     there, deviated downward to issue a mitigated range sentence of
     29 to 59 months’ incarceration, to be followed by 5 years'
     probation on the count of Robbery, with concurrent sentences
     entered on the remaining charges.       Furthermore, the court
     insisted and ruled, over Commonwealth objection, that
     [Appellant] was to serve his sentence in a county correctional
     facility.

     The Commonwealth filed a timely Motion to Modify Sentence
     seeking application of the Deadly Weapon Used sentencing
     enhancement and a standard range sentence based upon that
     sentencing matrix. The Commonwealth also contested county
     placement for [Appellant], insisting that he serve a state sentence
     in a state correctional facility.

     The court conducted a hearing on the post-sentence motion on
     September 2, 2015, and, as detailed more fully, infra, withdrew
     its previous sentence in favor of an even more lenient sentence of
     incarceration of 11½ to 24 months, less one day, in a county
     correctional facility, provided [Appellant] agree to waive his right
     to parole and serve the full 24 months, less one day. The court
     explained that it was reducing [Appellant]’s sentence in order to
     avoid a statutory provision that conditions county placement for a
     maximum sentence of between two and five years’ incarceration
     on a district attorney's prior consent. In the case sub judice,


                                    -2-
J-A26031-17


      District Attorney Parks Miller did not consent to county placement
      for a crime she insisted warranted state placement.

Shull, 148 A.3d at 829.

      We vacated the sentence and remanded for resentencing, finding that

the trial court had abused its discretion by refusing to apply the “deadly

weapon used” enhancement requested by the Commonwealth where the facts

supported its application.    Id. at 829.   Instead, the court had imposed a

sentence that departed from the standard range of the guidelines to effectuate

the incarceration of Appellant in a county facility, without considering the

individualized circumstances of the case.    Id. at 832-37.   On remand, we

instructed the court to use a correct guidelines calculation before exercising

its discretion. Id. at 832.

      In January 2017, Appellant appeared before the court for resentencing.

The victim’s father testified about the effect the crime had had on her life,

including dropping out of college for a year, developing an eating disorder and

an alcohol addiction, and undergoing multiple hospitalizations. See Notes of

Testimony (N.T.), 1/25/17, at 4-15.     The court had the benefit of a pre-

sentence investigation report. Id. at 15. Appellant made argument regarding

his progress in prison, including achieving a high school diploma, completing

mental health counseling, and assisting illiterate inmates.     Id. at 21-23.

Appellant testified on his own behalf. Id. at 27-30.

      The court stated that it would sentence Appellant in the standard range

of the guidelines, as our Court had previously found its refusal to apply the



                                     -3-
J-A26031-17



“deadly weapon used” enhancement manifestly unreasonable. Id. at 30. The

court stated that:

      As noted by the Superior Court panel, the sentence we imposed
      previously was designed to avoid a period of state incarceration.
      Because the panel found such a desire was inappropriate in the
      circumstances of this case, we will sentence in the standard range
      ...

Id. at 31. The court sentenced Appellant to an aggregate sentence of forty-

five to ninety months of incarceration. Id. at 31-32. Appellant filed a motion

seeking reconsideration of his sentence, which the court denied following

argument. See N.T., 2/13/17, at 1-10.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.       The court did not issue a

responsive opinion.

      Appellant raises a single issue for our review:

      1. When this Court vacates a sentence because factors used by
      the trial court to depart from the guidelines were improper, does
      the lower court have the responsibility and the right to consider
      all legitimate sentencing factors ab initio rather than limit
      resentencing to the now-rejected factors?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).         Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1) whether

the appeal is timely; 2) whether Appellant preserved his issue; 3) whether



                                     -4-
J-A26031-17



Appellant’s brief contains a concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether that

statement raises a substantial question that the sentence is inappropriate

under the sentencing code. See Commonwealth v. Austin, 66 A.3d 798,

808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

      Appellant timely filed a notice of appeal, preserved his claim in a post-

sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)

statement.    We must now determine whether he has raised a substantial

question that the sentence is inappropriate under the sentencing code and, if

so, review the merits. A substantial question must be evaluated on a case-

by-case basis.   Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.

Super. 2003).      A substantial question exists only where the Appellant

advances a colorable argument that the sentencing judge’s actions were either

inconsistent with a specific provision of the Sentencing Code or contrary to

the   fundamental     norms     that    underlie   the   sentencing    process.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

      Here, Appellant suggests that he has raised a substantial question

because the sentencing court improperly concluded that it did not have the

discretion to consider all relevant sentencing factors. See Appellant’s Brief at

13. Appellant suggests that he has raised a substantial question because the

court did not address any sentencing criteria but instead “deemed itself

restricted to the factors it originally relied on but that this Court rejected.”

See Appellant’s Brief at 13. He avers that he is entitled to a blank slate upon

                                       -5-
J-A26031-17



resentencing where he presented substantial mitigation evidence between the

time of the original sentencing and the resentencing.         Id. at 13-14.   The

Commonwealth characterizes Appellant’s argument differently. It notes that

a claim the trial court did not accord proper weight to specific sentencing

factors does not, as a matter of law, raise a substantial question.           See

Commonwealth’s Brief at 11.

      Our Court has previously held that an averment that “the trial court

failed to consider relevant sentencing criteria, including the protection of the

public, the gravity of the underlying offense and the rehabilitative needs of

Appellant, as [42 Pa.C.S. § 9721(b) requires,] presents a substantial question

for our review in typical cases.” See Commonwealth v. Derry, 150 A.3d

987, 992 (Pa. Super. 2016).         To the extent that Appellant relies on

Commonwealth        v.   Losch,   we    will   review   his    sentence.      See

Commonwealth v. Losch, 535 A.2d 115, 119 (Pa. Super. 1987) (finding that

appellant’s arguments, including that the trial court erred at resentencing by

disregarding relevant evidence of good conduct in prison, presented a

substantial question).

      As noted supra, in Shull I we found that the court had abused its

discretion by refusing to apply the proper enhancement requested by the

Commonwealth to effectuate Appellant’s incarceration in a county facility,

without considering the individualized circumstances of the case.     Shull, 148

A.3d at 829-37. Although we found this application improper, we instructed




                                     -6-
J-A26031-17



the court on remand to apply the correct guidelines calculation prior to

exercising its discretion. Id. 832.

      Since Losch, we have noted that:

      When a sentence is vacated and the case is remanded to the
      sentencing court for resentencing, the sentencing judge should
      start afresh. Reimposing a judgment of sentence should not be a
      mechanical exercise. Given the important nature of the interests
      involved, the judge at the second sentencing hearing should
      reassess the penalty to be imposed on the defendant—especially
      where defense counsel comes forward with relevant evidence
      which was not previously available. Thus, [the defendant’s]
      conduct since the prior sentencing hearing is relevant at
      resentencing. The sentencing judge must take note of this new
      evidence and reevaluate whether the jail term which [the
      defendant] received is a just and appropriate punishment.

Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa. Super. 1994). On

resentencing the court should consider several variables and there is no right

to have one take precedence over all the others. Losch, 535 A.2d at 123.

      Here, the court did not mention any other factor beyond this court’s

prior decision. Generally, we presume that, where the sentencing judge has

the benefit of a PSI, “[he] was aware of the relevant information regarding

the defendant's character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Boyer, 856 A.2d 149, 154

(Pa. Super. 2004) (citation omitted). However, it appears the court did not

exercise its discretion at all. Rather, it appears the court misapprehended our

prior instructions. The court stated that:

      As noted by the Superior Court panel, the sentence we imposed
      previously was designed to avoid a period of state incarceration.
      Because the panel found such a desire was inappropriate in the

                                      -7-
J-A26031-17


      circumstances of this case, we will sentence in the standard range
      ...

See N.T., 1/25/17, at 31.

      In the previous matter, we found that the court had departed from the

guidelines without good cause and without considering the individualized

circumstances of Appellant’s case, leading it to impose a sentence below the

standard range for an inappropriate reason. See Shull, 148 A.3d at 832-37.

However, our prior opinion did not require the court to sentence within the

guidelines on remand, only that the court apply the proper enhancement

before exercising its discretion.    Id.   Here, the court imposed a guideline

sentence without considering the individualized circumstances of Appellant’s

case and additional information introduced at the re-sentencing, and

accordingly, committed an abuse of discretion. See Losch, 535 A.2d at 123;

Jones, 640 A.2d at 919-20; see N.T., 1/25/17, at 31.              Thus, we are

constrained to vacate the sentence and remand for resentencing.

      Judgment    of   sentence     vacated.    Remanded    for   resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




                                       -8-
