J-S59019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAVARYEA TAYLOR                           :
                                               :
                       Appellant               :   No. 3614 EDA 2016

           Appeal from the Judgment of Sentence November 26, 2013
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0014476-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 29, 2018

        Shavaryea Taylor appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction for

robbery (F-1),1 conspiracy to commit robbery (F-1),2 firearms not to be carried

without a license (F-3),3 carrying a firearm in public in Philadelphia (M-1),4

and possession of an instrument of crime (M-1) (PIC).5 He challenges the

discretionary aspects of his sentence, claiming his outside-the-guideline

sentence was “far in excess of that which was necessary to protect the public

____________________________________________


1   18 Pa.C.S. § 3701(a)(1)(iii).

2   18 Pa.C.S. § 903(c).

3   18 Pa.C.S. § 6106(a)(1).

4   18 Pa.C.S. § 6108.

5   18 Pa.C.S. § 907(a).
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and [] did not take into consideration [his] rehabilitative needs or potential.”

Appellant’s Supplemental Brief, at 11. We affirm.

      On September 6, 2011, Taylor and his three co-conspirators robbed a

pizza deliveryman at gunpoint. The co-conspirators had placed a phone order

to Memo’s Pizza in West Philadelphia and requested food be delivered to a row

home located at 105 Cecil Street. When the delivery man exited his car to

bring the order to the home, Taylor and his co-conspirators approached him

and demanded the food. Taylor took a gun from one of the co-conspirators

and pointed it at the delivery man while another conspirator took

approximately $36.00 worth of food from the victim.        At a jury trial, the

Commonwealth presented evidence that Taylor had committed two similar

robberies in August 2011, both involving phoning in food orders and then

robbing the delivery persons at gun point.

      Taylor was convicted by a jury of the aforementioned offenses.         On

November 26, 2013, the court sentenced Taylor to the Commonwealth’s

recommended sentence of 8-20 years’ imprisonment for the robbery

conviction, with concurrent terms of ten years’ probation on the conspiracy

conviction, a seven-year term of probation for carrying a firearm without a

license, and two terms each of five years’ probation for PIC and the remaining

firearm offense.

      On appeal, Taylor presents the following issue for our consideration:

Did the lower court abuse its discretion by fashioning a sentence that

exceeded that which is necessary to protect the public, and that was an

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upward departure from the sentencing gui[]delines where [Taylor] had a “0”

prior record score, and where the lower court disregarded the sentencing

guidelines?” Appellant’s Supplemental Brief, at 4.

      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:

      (1) whether appellant has timely filed a 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 the appellant’s
      brief has a fatal defect [by failing to include 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, 42 Pa.C.S. § 9781(b).

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

omitted).

      Instantly, Taylor was sentenced on November 26, 2013. On October

17, 2016, the trial court reinstated his direct appeal rights nunc pro tunc via

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. He filed a timely

notice of appeal on November 16, 2016.        Taylor has also preserved his

sentencing issue, having filed a motion for reconsideration, stating that his

outside-the-guideline sentence was excessive. Finally, Taylor includes a Rule

2119(f) statement in his appellate brief.




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      A claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guideline ranges presents a "substantial question" for

our review.   Commonwealth v. Hess, 745 A.2d 29, 30 n.3 (Pa. Super.

2000). Thus, Taylor has invoked our jurisdiction to review this issue.

      “Our Supreme Court has indicated that if the sentencing court proffers

reasons indicating that its decision to depart from the guidelines is not

unreasonable, we must affirm a sentence that falls outside those guidelines[.]”

Commonwealth v. Mouzon, 828 A.2d 1126, 1128-29 (Pa. Super. 2003)

(citations omitted).

      At sentencing the parties agreed, on the record, that Taylor’s prior

record score was a zero and his offense gravity score a ten. N.T. Sentencing

Hearing, 11/26/13, at 5. The parties also noted that Taylor used a deadly

weapon, which would make the guideline range for the offense 40-54 months,

plus or minus 12 months. Id. The Commonwealth asked for a sentence of 8-

20 years’ imprisonment, id. at 7, focusing on Taylor’s extensive criminal

history as a juvenile, id. at 8, and his history of being “defiant, disrespectful,

and violent towards his peers and authority figures.” Id.

      Pursuant to 42 Pa.C.S. § 9721, when a court imposes a sentence outside

the sentencing guidelines adopted by the Pennsylvania Commission on

Sentencing, it must provide a contemporaneous written statement of the

reason or reasons for deviation from the guidelines. Commonwealth v. Eby,

784 A.2d 204, 206 (Pa. Super. 2001) (citations omitted). Failure to comply


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is grounds for vacating the sentence and re-sentencing the defendant. Id. A

trial judge who intends to sentence a defendant outside the guidelines must

demonstrate on the record, as a proper starting point, his awareness of the

sentencing guidelines. Having done so, the sentencing court may deviate from

the guidelines, if necessary, to fashion a sentence that 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, so long as the court also states of record the factual

basis and specific reasons that compelled it to deviate.

      The court justified its sentence in the instant case as follows:

      I am going to impose a period of prison in the state correctional
      institution because of the seriousness of the offense, because the
      offense gravity score does not fully reflect the seriousness of this
      offense, and because not only do we have a robbery, but we have
      a robbery with conspiracy with a weapon, and the defendant was
      found guilty of all those charges, found guilty of robbery,
      conspiracy, and three weapons offenses.              The D[istrict]
      A[ttorney]’s recommendation is a reasonable recommendation
      considering the facts of this case, so I will impose a sentence of 8
      to 20 years in a state correctional institution.

See N.T. Sentencing Hearing, 11/26/13 at 17.

      The fact that Taylor was one of several conspirators who held a gun to

the victim’s head during the robbery greatly influenced the trial judge’s

determination that he needed to deviate upwards from the sentencing

guidelines. Id. at 16 (“Correct me if I’m wrong, but didn’t the complainant in

this case testify that this defendant, Taylor, took the gun and put it against

his head, put it to his head?”). The court also took into account the fact that


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Taylor showed a lack of remorse for his participation in the instant crime,

stating at sentencing that “still today I feel as though I’m innocent.” Id. at

13.   Moreover, Judge Cunningham had the benefit of a pre-sentence

investigation (PSI) report and the Probation Department’s sentencing

calculation when he fashioned Taylor’s sentence.     Id. at 3-4.    As the PSI

indicated, Taylor committed the instant offense only days after his eighteenth

birthday and while he was still on juvenile probation. See Commonwealth

v. Devers, 546 A.2d 12 (Pa. 1988) (where court has benefit of PSI, court

presumed to have been aware of relevant information regarding defendant’s

character and weighed those considerations along with any mitigating

factors). Finally, at sentencing the court demonstrated its awareness of the

relevant sentencing guidelines for Taylor’s offenses. Eby, supra.

      Based on the record, we cannot conclude that the Taylor’s sentence is

unreasonable. The trial court proffered sufficient reasons indicating why it

decided to sentence outside the guidelines. Accordingly, we affirm. Smith,

supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/18

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