J-S45021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOMAR ERIC RODRIGUEZ                       :
                                               :
                       Appellant               :   No. 404 EDA 2019

          Appeal from the Judgment of Sentence Entered May 31, 2017
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0005981-2016


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 23, 2019

        Jomar Eric Rodriguez (Appellant) appeals from the judgment of sentence

imposed after the trial court found him guilty of four counts each of possession

with the intent to deliver heroin (PWID) and possession of a controlled

substance; the court also convicted Appellant of one count each of criminal

use of a communication facility, dealing in proceeds of unlawful activities, and

criminal conspiracy.1 Upon review, we vacate Appellant’s sentence only as to

Appellant’s eligibility for a reduced sentence under the Recidivism Risk

Reduction Incentive (RRRI) Act, 61 Pa.C.S.A. §§ 4501-4512.            In all other

respects, the judgment of sentence is affirmed.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

135 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. §§ 7512(a), (5111)(a)(1),
and 903.
J-S45021-19



       The underlying charges arose after Appellant was involved in distributing

heroin to a police informant, and law enforcement executed a search warrant

on his residence. Trial Court Opinion, 4/24/19, at 1-2. Upon executing the

warrant, police found 13 bundles of heroin and a handgun. N.T., 5/17/17, at

102-14. A subsequent search of Appellant revealed he had over $1,000 on

his person. Id. at 141.

       Appellant was charged with and convicted of the above crimes.2 On May

31, 2017, the trial court sentenced Appellant to an aggregate 6 to 20 years of

incarceration. On June 6, 2017, Appellant filed a timely post-sentence motion.

The trial court never ruled on Appellant’s post-sentence motion. On December

12, 2017, Appellant filed a pro se petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. After appointing PCRA counsel

and postponing several hearings, the court dismissed Appellant’s petition,

stating that the petition was “premature” because of the outstanding post-

sentence motion. Order, 1/10/19, at 1. The court also ordered the clerk of




____________________________________________


2 The trial court found Appellant not guilty of drug delivery resulting in death,
18 Pa.C.S.A. § 2506(a). It appears from the record that the Commonwealth
charged Appellant with violating Section 2506(a) under a theory that the
heroin Appellant distributed to the police informant was then sold to an
individual who subsequently died from an overdose. See Trial Court Opinion,
4/24/19, at 1-2.




                                           -2-
J-S45021-19



courts to “enter a judgment DENYING [Appellant’s] post-sentence motion for

reconsideration of sentence, filed June 6, 2017, by operation of law.”3 Id.

       On January 31, 2019, Appellant filed this appeal. Both Appellant and

the trial court have complied with Pennsylvania Rule of Appellate Procedure

1925. Appellant presents two issues for review:

       [1.] Did the lower court err in not imposing a RRRI minimum
       sentence at the time of sentencing, or appropriately thereafter,
       given that Appellant was entitled to the imposition of a RRRI
       minimum pursuant to 42 Pa.C.S. § 9756 and 61 Pa.C.S. § 4501,
       thus rendering the sentence illegal?

       [2.] Did the lower court abuse its discretion in rendering the
       sentence imposed because:

              a. The lower court relied upon uncharged and
              unproven conduct in rendering a sentence that
              departed upwards from the Sentencing Guidelines,
              specifically, alleged evidence that Appellant had been
____________________________________________


3 A trial court has 120 days to decide a post-sentence motion; if it fails to
decide it in that period, the motion is deemed denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). At that time, “the clerk of courts shall forthwith
enter an order on behalf of the court [denying the post-sentence motion by
operation of law], and . . . forthwith shall serve a copy of the order on the
attorney for the Commonwealth, the defendant’s attorney, or the defendant if
unrepresented, that the post-sentence motion is deemed denied.”
Pa.R.Crim.P. 720(B)(3)(c). Here, the 120-day period to decide Appellant’s
post-sentence motion expired on October 4, 2017, but the clerk of courts
failed to enter an order to that effect. Thus, technically, Appellant’s notice of
appeal, filed on January 31, 2019, is untimely. However, “[t]his Court has
previously held that, where the clerk of courts does not enter an order
indicating that the post-sentence motion is denied by operation of law and
notify the defendant of same, a breakdown in the court system has occurred
and we will not find an appeal untimely under these circumstances.”
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). As
Appellant filed his notice of appeal within 30 days of the trial court’s order
dated January 10, 2019—the date his post-sentence motion was denied—we
decline to find that Appellant’s appeal is untimely.

                                           -3-
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            selling heroin for a “long time” and for about three
            years, where the crimes charged reflected that
            Appellant made three drug sales within a very short
            period of time;

            b. The lower court failed to appropriately weigh that
            Appellant essentially pled guilty to the charges upon
            which he was sentenced;

            c. The lower court, in departing upwards from the
            aggravated range of the guidelines, for a defendant
            who had no prior record, failed to appropriately
            consider Appellant’s lack of a prior record and treated
            Appellant disproportionately as compared to other
            similarly situated individuals convicted of the same
            type of conduct as Appellant, suggesting that the
            court relied, in part, on the fact that Appellant was
            originally charged with drug delivery resulting in
            death, despite the fact that the court acquitted
            Appellant of that charge.

Appellant’s Brief at vi.

                                     RRRI

      Appellant first argues that the trial court erred by failing to impose an

RRRI minimum sentence.       Appellant’s Brief at 6-7.    The Commonwealth

agrees, stating, “remand for a hearing is appropriate on the sole issue of

determining whether Appellant, is in fact, eligible for a RRRI minimum

sentence.” Commonwealth Brief at 17. The Commonwealth acknowledges

Appellant “may be eligible under the RRRI Act.” Id.

      Likewise, the trial court requests remand. The trial court states:

            The RRRI eligibility of Appellant was briefly discussed during
      his verdict and sentencing on June 1, 2017. Whether Appellant
      was eligible for RRRI was called into question by the
      Commonwealth because one issue involved a firearm. However,
      none of the crimes charged had a firearm component, so this
      [c]ourt gave leave to the Commonwealth and [d]efense counsel

                                     -4-
J-S45021-19


      to research the issue and file an agreed order within ten days. On
      the record, this [c]ourt informed Appellant that with Appellant’s
      aggregate sentence, Appellant’s minimum sentence would be
      sixty months. On June 6, 2017, [d]efense [c]ounsel did file a
      motion for reconsideration of sentence, however, [d]efense
      counsel only raised issues relating to the discretionary aspects of
      sentencing and did not raise the issue of RRRI eligibility. On
      January 9, 2019, a judgment denying Appellant’s post-sentence
      [m]otion for [r]econsideration of [s]entence by [o]peration of
      [l]aw was entered. Therefore, this [c]ourt respectfully requests
      the Superior Court [r]emand this matter so as to sentence
      Appellant according to his appropriate RRRI [m]inimum.

Trial Court Opinion, 4/24/19, at 4-5 (citations to notes of testimony omitted).

      Appellant’s “challenge relative to the failure to apply a RRRI minimum

[is] a non-waivable illegal sentencing claim.” Commonwealth v. Tobin, 89

A.3d 663, 670 (Pa. Super. 2014) (citation omitted). “Issues relating to the

legality of a sentence are questions of law.” Commonwealth v. Wolfe, 106

A.3d 800, 802 (Pa. Super. 2014) (citation omitted). “Our standard of review

over such questions is de novo and our scope of review is plenary.” Id.

      We agree that remand is warranted. The relevant statute provides:

      (a) Generally.--At the time of sentencing, the court shall make
      a determination whether the defendant is an eligible offender.


                                 *     *     *

      (c) Recidivism risk reduction incentive minimum
      sentence.--If the court determines that the defendant is an
      eligible offender or the prosecuting attorney has waived the
      eligibility requirements under subsection (b), the court shall enter
      a sentencing order that does all of the following:

            (1) Imposes the minimum and maximum sentences
            as required under 42 Pa.C.S.[A.] § 9752 (relating to
            sentencing proceeding generally).


                                     -5-
J-S45021-19


            (2) Imposes the recidivism risk reduction incentive
            minimum sentence. The recidivism risk reduction
            incentive minimum shall be equal to five-sixths of the
            minimum sentence if the minimum sentence is greater
            than three years. . . .

61 Pa.C.S.A. § 4505.

      The Sentencing Code states that a sentencing court “shall determine if

the defendant is eligible for a recidivism risk reduction incentive minimum

sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism risk reduction

incentive).” 42 Pa.C.S.A. § 9756(b.1). “If the defendant is eligible, the court

shall impose a recidivism risk reduction incentive minimum sentence in

addition to a minimum sentence and maximum sentence[.]” Id.

      In accordance with statutory law, we have repeatedly held that “where

the trial court fails to make a statutorily required determination regarding a

defendant’s eligibility for an RRRI minimum sentence as required, the

sentence is illegal.”   Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa.

Super. 2010); see also Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.

Super. 2014) (citation omitted).

      As the trial court and Commonwealth concede, the issue of Appellant’s

RRRI eligibility was addressed but not resolved.       See Trial Court Opinion,

4/24/19, at 4-5; Commonwealth’s Brief at 17; see also N.T., 6/1/17, at 28-

30 (trial court discussing Appellant’s RRRI eligibility with parties but failing to

make a determination).      Therefore, Appellant received an illegal sentence,

such that remand is appropriate for the trial court to determine Appellant’s

RRRI eligibility. If the trial court concludes that Appellant is RRRI eligible, it


                                       -6-
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shall impose an RRRI minimum sentence in accordance with Section 4505(c).

If the court concludes that Appellant does not meet the criteria for eligibility,

it shall enter that finding on the record.

                       Discretionary Aspects of Sentence

       In Appellant’s second issue, he challenges the discretionary aspects of

his sentence. Appellant alleges the trial court 1) imposed a sentence that was

disproportionate to those received by similarly situated individuals convicted

of the same type of conduct;4 2) failed to appropriately consider that Appellant

“essentially plead guilty to the charges”; 3) impermissibly relied upon

uncharged and unproven conduct in rendering a sentence above the

guidelines; and 4) failed to adequately consider numerous mitigating factors

in imposing a sentence above the guidelines. Appellant’s Brief at 6.

       Preliminarily, “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered a petition for

permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265

(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this

____________________________________________


4 In his brief, Appellant fails to further develop, nor does he provide any
citation to relevant legal authority in support of his claim that the trial court
“imposed a sentence that was disproportionate to those received by similarly
situated individuals convicted of the same type of conduct.” See Appellant’s
Brief at 9-13. Appellant also fails to provide any examples of sentences
imposed by the trial court on similarly situated defendants. See id. This
claim is therefore waived. See Commonwealth v. Johnson, 985 A.2d 915,
924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”) (citations
omitted).

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J-S45021-19



Court’s jurisdiction when challenging the discretionary aspects of a sentence.”

Id. We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Here, Appellant has complied with the first three prongs of the test by

raising his discretionary sentencing claims in a timely post-sentence motion,

filing a timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement.    See Appellant’s Brief at 7-9.     We therefore examine whether

Appellant presents substantial questions for review.

      As noted above, Appellant’s first sentencing claim is waived.

      In his second sentencing claim, Appellant argues that “[t]he lower court

failed to appropriately weigh that Appellant essentially pled guilty to the

charges upon which he was sentenced.” Appellant’s Brief at 6. This does not

present a substantial question. See Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013) (“[A] claim of inadequate consideration of

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mitigating factors does not raise a substantial question for our review.”)

(citation omitted).

      In his two remaining claims, Appellant asserts that the trial court relied

upon an impermissible factor in fashioning his sentence, specifically that

“Appellant had been selling heroin for a ‘long time,’’’ and that the trial court

imposed an excessive sentence while also failing to consider multiple

mitigating factors.   Appellant’s Brief at 6.    These claims raise substantial

questions. See Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super.

2018) (a claim that the sentencing court considered an impermissible factor

raises a substantial question) (citation omitted); Commonwealth v. Swope,

123 A.3d 333, 340 (Pa. Super. 2015) (“This Court has also held that an

excessive sentence claim—in conjunction with an assertion that the court

failed to consider mitigating factors—raises a substantial question.”) (citations

omitted).

      Presented with two substantial questions, we recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

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Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

     Further:

           A sentencing judge has broad discretion in determining a
     reasonable penalty, and appellate courts afford the sentencing
     court great deference, as it is the sentencing court that is in the
     best position to “view the defendant’s character, displays of
     remorse, defiance, or indifference, and the overall effect and
     nature of the crime.” Commonwealth v. Walls, [] 926 A.2d 957,
     961 ([Pa.] 2007) (citation omitted). When imposing a sentence,
     the sentencing court must consider “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.A. § 9721(b). As we have stated, “[A]
     court is required to consider the particular circumstances of the
     offense and the character of the defendant.” Commonwealth v.
     Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). In particular, the
     sentencing court should refer to the defendant’s prior criminal
     record, his age, personal characteristics, and his potential for
     rehabilitation. Id.

           Moreover, it is well settled that sentencing courts are not
     bound by the Sentencing Guidelines; the Guidelines are merely
     advisory. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
     Super. 2008) (citation omitted). The sentencing court may
     deviate from the Sentencing Guidelines, because they are one
     factor among many that the court must consider when imposing
     a sentence. Id. (citation omitted). The sentencing court “may
     depart from the [G]uidelines if necessary, to fashion a sentence
     which takes into account the protection of the public, the
     rehabilitative needs of the defendant, and the gravity of the
     particular offense as it relates to the impact on the life of the
     victim and the community.” Id. ([] citations omitted).

Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super. 2018).

     When a trial court imposes an aggravated range sentence, “it shall state

the reasons on the record.” 204 Pa. Code § 303.13.




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      The [trial] court is not required to parrot the         words of the
      Sentencing Code, stating every factor that must        be considered
      under Section 9721(b). However, the record as          a whole must
      reflect due consideration by the court of              the statutory
      considerations enunciated in that section.

Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)

(citations omitted).

      At sentencing, Appellant waived the production of a pre-sentence

investigation report, as well as a mental health evaluation. See N.T., 6/1/17,

at 3. Prior to imposing Appellant’s sentence, the trial court commented at

length:

            All right. . . . the case is, as I indicated earlier, a difficult
      case because what brings us all here together is that a young man
      died well before his time, and it was from the use of heroin. So
      we know what heroin does to people. And as the Superior Court
      pointed out, as [the Commonwealth] has highlighted, it’s like
      playing Russian roulette.

            On the other hand, I’m not certain that the heroin
      [Appellant] sold on that day is the cause of this man’s death. I
      am certain, however, that his parents and the Commonwealth
      disagree with that on whether I believe that; and just not beyond
      a reasonable doubt is of no moment, because I really can’t
      consider those things.

            What I can consider are the facts of the case, which are
      quite clear. And I’m obligated to consider and, [Appellant], you
      should understand that I have to take into account a lot of things.
      And I’ll go through those with you so that you understand why I’m
      going to impose the sentence that I’m going to talk about in a few
      minutes.

             First of all, I have to consider the facts of the case. And the
      facts are quite simple when you take out the unfortunate death of
      [James] Leupold. You sold drugs on -- you sold heroin on the
      19th, the 24th of May, and the first of June, and to the same person.


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     I suspect you could sell the heroin to that person every day if
     she’d called you. That’s really not the issue.

            The issue is that you’re a person engaged in the distribution
     and sale of heroin. As we know what heroin can do, it’s -- you
     can pick up a paper, you watch the news, you come to this
     courthouse, you’ll -- I suspect you go to any courthouse you’re
     going to find the same problem. There is a heroin epidemic. And
     it’s a drug that is exceptionally dangerous, addictive and it ruins
     the lives of almost anybody who uses it.

          And you are a participant and perhaps a contributor to that
     epidemic when you sell heroin, especially when you sell it in the
     quantity and quality that you were selling.

           The testimony in the case was, as I indicated, you made
     three deliveries to [April] Mertz. The statements are that you
     were perhaps getting [10] to 15 bundles per day and delivering
     those. And I already heard some testimony, or saw the tape,
     where you said you’re not really making that much money.

            So I suspect in your mind it’s, well, I’m not making a lot of
     money. I’m not a big-time dealer. But when you have that many
     people you’re selling to, you’re having an impact upon the lives in
     the community as a whole.           You’re impacting those lives
     individually and you’re affecting the community as a whole, and
     so it’s a very serious offense.

            You were engaged in this conduct for an appreciable period
     of time. And I dare say, and I’m not going to give it a lot of
     weight, but I just want to point out something that while you
     appear to be someone who has said, I’ve learned from the last
     year in jail, I want to get home to my family and I’m sorry for
     what happened, I dare say that had you not been arrested you’d
     probably still be doing this. Because I believe that the facts of
     this case, putting aside the unfortunate death of Mr. Leupold, are
     quite serious because they very simply demonstrate that you were
     engaged in the distribution of heroin for a long period of time.

           So I’ve taken the facts into account. Another factor I have
     to consider is your background, your character. I don’t know
     much about you. I know that your counsel has pointed out that
     your family members have been here throughout. And for what
     it’s worth, they’ve been very respectful, very appropriate. We

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     don’t always see that in court. Sometimes people come in and
     they resent the fact that they have to be here. In your case
     they’ve been very respectful and appropriate.

           And I think that speaks well of you. You have, too. You sat
     there and let the lawyers do their job. You’ve shown no emotion,
     which, again, is something that I credit to you because sometimes
     the defendants will get upset and they’ll make faces and they’ll try
     to distract the lawyer. But you seem to be very appropriate in
     your behavior. So I know that about you.

           The guidelines in this case recommend on each of the drug
     counts, the delivery and the intent to deliver, [6] to 14 months for
     the delivery, [3] to 12 for the intent to deliver, and for Count 7,
     dealing in unlawful proceeds, [9] to 16 months. So that’s in the
     standard range.

           The aggravated -- or the mitigated range, of course, is
     probation. And the aggravated range for the dealing in proceeds
     would be 25 months for the delivery. So it would be 20 months,
     and the intent to deliver would be 20 months as well.

           So the sentencing guidelines for each one contemplate a
     sentence -- for each delivery -- contemplate a sentence in that
     standard range. Now, whether that sentence is to be concurrent,
     consecutive, or something that is not to be considered is
     something that I’ll talk to you about in a few minutes. But those
     are the guidelines.

            And I’ve touched upon the impact this has had upon the
     community. When you introduce heroin into the community it has
     an adverse impact upon the community, as had been pointed out.
     I’ve already referred to it. It’s a serious crime. It’s a serious drug
     and it’s Russian roulette.

            You may -- you may not have a drug problem. You may
     have never used it. I don’t know that. You may, you may not. I
     suspect that after a year in jail it’s fair to say you haven’t been
     using the drug. But you were selling it. And so the impact it’s
     had upon the community is, quite frankly, immeasurable given the
     numbers that I’ve been presented and the things I’ve heard during
     the trial.




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           The need to protect the community from you and others
     engaged in this type of conduct is also something I must take into
     account. And I guess that there’s an argument to be made every
     time the police arrest a drug dealer and take them off [the] street:
     There’s someone else to fill in for them. And so we try not to
     make it too personal or try not to single you out.

          But in your case there is a need that I think to protect the
     community that falls into your case as well. You had 13 bundles.
     You had packaging. You had a gun. And you had a stamp for
     another type of, I think it’s a fair inference, another type of heroin.

           So we know from Ms. Mertz that you were selling High Low,
     Slow Motion[.] . . . And Godfather is the third one. So we know
     that those are the tools of the drug dealer’s trade.

           And as has been pointed out, again, the amount, 13 bundles
     and a large amount of packaging and the statement that it was
     [10] to 15 bundles per day and that Ms. Mertz has been dealing
     with you for some period of time, are all things that, at least in
     my mind, suggest that you were not a casual dealer but you were
     someone who was much more involved in the heroin trade.

          And, lastly, we have the need for your rehabilitation.
     Rehabilitation, as I’m sure your counsel has told you, can take
     many forms. Some people need drug and alcohol treatment for
     rehabilitation. Some need perhaps mental health treatment.
     Others need some time in jail. And while you may think you’ve
     been in long enough and you want to get home, you’ve been
     rehabilitated, you know, that to me means that you need to
     understand the nature and gravity of the offense as well. . . .

            What I have to go on is your age, the nature of the offense,
     the number of deliveries over a short period of time, the amount
     of drugs that were involved, the paraphernalia and packaging, and
     all of the things that we’ve discussed.

           So in my opinion my belief is that you need some period of
     incarceration. You need to be in the state correctional institution
     for some period of time, because to do otherwise would depreciate
     the seriousness of the offense.

           And so rather than run them consecutively, because I do
     believe that every delivery in this case would or should have an

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J-S45021-19


        impact upon what he did since it is a continued course of conduct,
        I want to make sure that if I impose a sentence outside the
        standard range he understands why.

              I could impose a number of consecutive sentences in the
        standard range for each of these and we’d end up in the same
        place. I don’t really want to do that. I don’t think that helps you
        in the institution to have to perhaps apply for parole one after the
        other.

              I think it’s better for you to be able to not try and assess
        that when you’re in custody. I think it’s always better to have --
        to consolidate them for purposes of sentencing, so I don’t want
        you to get the wrong impression.

N.T., 6/1/17, at 17- 26.

        Consistent with the foregoing, we discern no abuse of discretion by the

trial court. Appellant’s claim that the trial court relied upon an impermissible

sentencing factor by considering that he had been selling drugs for years is

without merit. This Court has repeatedly held that unprosecuted prior criminal

conduct “has long been an acceptable sentencing consideration . . . when

there    is   evidentiary   proof   linking   the   defendant   to   the   conduct.”

Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006); see also

Commonwealth v. Schrader, 141 A.3d 558, 564 (Pa. Super. 2016).

        The trial court stated that it “believe[d] that the facts of this case . . .

are quite serious because they very simply demonstrate that you were

engaged in the distribution of heroin for a long period of time.” N.T., 6/1/17,

at 20. The trial court explained, “[f]rom the evidence presented at trial such

as the amount of heroin found, the amount of packaging material found, and

the amount of heroin dealt to Ms. [Mertz], this [c]ourt could surmise that



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Appellant was a dealer and had been a dealer for a long time and dealt in large

quantities.”   Trial Court Opinion, 4/24/19, at 8.     The court’s findings are

supported by the record, including, inter alia, Ms. Mertz’s testimony that

Appellant had been her heroin dealer for 3 years. N.T., 5/17/17, at 42.

      Further, there is no merit to Appellant’s claim that the trial court

imposed an excessive sentence while failing to consider mitigating factors.

The court’s detailed remarks refute this claim. The court clearly considered

numerous appropriate factors such as Appellant’s age, background, and

character, his appropriate behavior during the pendency of the proceedings,

and his rehabilitative needs. However, the court noted the applicable standard

range sentences, and discussed the facts attendant to Appellant’s convictions

and the serious nature of Appellant’s crimes, concluding that Appellant posed

a danger to the community. Accordingly, the record reflects that the court

weighed the appropriate factors and provided adequate reasons for

Appellant’s sentence.

      In sum, with the exception of Appellant’s RRRI eligibility, we affirm the

judgment of sentence, noting that remand for a determination of RRRI

eligibility will not disturb the overall sentencing scheme.

      Judgment of sentence affirmed in part and vacated in part.          Case

remanded only for proceedings regarding Appellant’s RRRI eligibility.

Jurisdiction relinquished.




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J-S45021-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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