J-S14006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                     v.

TITO GARCIA

                           Appellant                     No. 2844 EDA 2013


            Appeal from the Judgment of Sentence June 4, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003693-2011


BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY OLSON, J.:                          FILED MAY 15, 2015

      The learned Majority concludes that the trial court improperly used the

mandatory   minimum        sentence    contained   in   18   Pa.C.S.A.   § 7508   in

sentencing Tito Garcia (Garcia). Finding that the court’s alleged reliance on

§ 7508 resulted in an illegal sentence, the Majority vacates Garcia’s

sentence and remands.         In so doing, the Majority effectively transforms

Pennsylvania’s now-invalid mandatory sentencing schemes into a sentencing

cap, beyond which the trial courts of this Commonwealth will be reluctant to

tread. As I am unable to agree with the Majority’s analysis and conclusion, I

must respectfully dissent.

      My initial point of departure from the Majority’s analysis involves its

election to review this case as one involving a challenge to the legality of

Garcia’s sentence.        I agree with the Majority that, in general, issues
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pertaining to Alleyne v. United States, 133 S.Ct. 2151 (2013) relate to the

legality of a sentence. See Commonwealth v. Cardwell, 105 A.3d 748,

750 (Pa. Super. 2014). As such, those issues ordinarily involve questions of

law over which our standard of review is de novo and our scope of review is

plenary. Id.

      My concern arises from how we should weigh Garcia’s appellate issues

against the precise factual and procedural history of this case.       The trial

court stated that it did not impose a mandatory minimum sentence under

§ 7508. Indeed, the transcript of Garcia’s sentencing hearing fully supports

this assertion:   not once during that proceeding did the trial court even

mention § 7508 or the application of that provision to the facts herein.

Instead, the trial court imposed a lengthier term of incarceration based

exclusively upon Garcia’s criminal history and lack of remorse. For reasons

that I shall discuss in greater detail below, I cannot agree that the trial court

assessed a sentence that it lacked the authority to impose. The challenged

sentence did not exceed the statutory maximum. Moreover, it is important

to note that the trial court sentenced Garcia on June 4, 2013, 13 days

before the United States issued its decision in Alleyne.          Thus, § 7508

remained a constitutionally valid sentencing provision when the court set




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Garcia’s punishment.1 Since Garcia’s penalty fell within statutory limits and,

more importantly, since the trial court expressly stated that it did not rely on

§ 7508 in fashioning Garcia’s sentence, I read Garcia’s appellate issues as

asking only whether the sentencing court abused its discretion when setting

Garcia’s punishment.          Thus, I would review this case under a more

deferential, abuse of discretion standard.2      Applying such a standard, I

would uphold Garcia’s sentence.




____________________________________________


1
  Indeed, at sentencing, it was defense counsel who specifically requested
application of the three to six year mandatory minimum sentence set forth in
§ 7508. See N.T., 6/4/13, at 6-7.
2
  Under Pennsylvania law, an illegal sentence is one that the trial court lacks
statutory authority to impose. See Commonwealth v. Mears, 972 A.2d
1210, 1211 n.1 (Pa. Super. 2009). When the trial court issued its judgment
of sentence on June 4, 2013, it undoubtedly possessed the authority to
order Garcia to serve four to eight years in prison, followed by three years’
probation, for his crimes. The Majority does not hold otherwise and,
notwithstanding Alleyne and its progeny within this Commonwealth, the
trial court still retains the discretionary authority to order such a
punishment.     My learned colleagues do not question the trial court’s
authority to impose the sentence that it did; they merely scrutinize the
propriety of an alleged component of the trial court’s sentencing
determination. In view of these circumstances, I must conclude that this
case calls for a discretionary sentencing analysis. See Commonwealth v.
Chase, 530 A.2d 458, 460 (Pa. Super. 1987) (where sentence was
undeniably within legal limits imposed by the legislature and appellant's only
contention was that the court considered an improper factor, consideration
of improper factor did not make sentence illegal and appeal challenged only
discretionary aspects of appellant's sentence).




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       In Commonwealth v. Sheller, 961 A.2d 187 (Pa. Super. 2008), this

Court set forth the standard for reviewing a claim challenging a discretionary

aspect of sentencing.3 In that case, we stated:


       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,
       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

       When imposing a sentence, the sentencing court is required to
       consider the sentence ranges set forth in the Sentencing
       Guidelines, but it [is] not bound by the Sentencing Guidelines.
       Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007)
       (“It is well established that the Sentencing Guidelines are purely
       advisory in nature.”); Commonwealth v. Walls, 926 A.2d 957,
       965 (Pa. 2007) (referring to the Sentencing Guidelines as
       “advisory guideposts” which “recommend ... rather than require
       a particular sentence”).       The court may deviate from the
       recommended guidelines; they are “merely one factor among
       many that the court must consider in imposing a sentence.”
       Yuhasz, 923 A.2d at 1118. A court may depart from the
       guidelines “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.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.
       Super. 2001).       When a court chooses to depart from the
       guidelines however, it must “demonstrate on the record, as a
       proper starting point, [its] awareness of the sentencing
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3
 Although our case law requires that discretionary sentencing challenges be
preserved through a post-sentence motion and the inclusion of a substantial
question in a concise statement filed under Pa.R.A.P. 2119(f), Sheller,
supra, I shall forego a discussion of issue preservation in the interest of
brevity.



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      guidelines.” Eby, 784 A.2d at 206. Further, the court must
      “provide a contemporaneous written statement of the reason or
      reasons for the deviation from the guidelines.” 42 Pa.C.S.A.
      § 9721(b).

      When reviewing a sentence outside of the guideline range, the
      essential question is whether the sentence imposed was
      reasonable. [Walls, 926 A.2d at 962]. An appellate court must
      vacate and remand a case where it finds that “the sentencing
      court sentenced outside the sentencing guidelines and the
      sentence is unreasonable.”   42 Pa.C.S.A. § 9781(c)(3).     In
      making a reasonableness determination, a court should consider
      four factors:

      (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.

      (4) The guidelines promulgated by the commission.

      42 Pa.C.S.A. § 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.” Walls, 926 A.2d at 964. 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.A. § 9721(b).

Sheller, 961 A.2d at 190-191.

      In the instant case, the sentencing court, with the benefit of a pre-

sentence investigation report, a mental health report, and an investigation of

Garcia’s   criminal   history,   sentenced   Garcia   to   four   to   eight   years’

imprisonment, which exceeded the aggravated range. The court explained



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that it enhanced Garcia’s punishment because of his criminal history and his

complete lack of remorse.      As the Majority notes, the trial court never

mentioned at Garcia’s sentencing hearing that it relied on § 7508 to impose

its sentence in this case. See Majority Memorandum at 7 (“trial court did

not specify that it was utilizing the mandatory minimum sentence contained

in section 7508(a)(2)(i) in fashioning Garcia’s sentence”).      Moreover, it is

clear from the court's statements that it considered all of the requisite

factors, including the nature and circumstances of the offense, the

recommended guideline range, protection of the public, the gravity of the

offense, and the rehabilitative needs of the defendant, when imposing the

sentence challenged in this appeal.       See 42 Pa.C.S.A. §§ 9781(d) and

9721(b).   Further, the sentencing court had a pre-sentence investigation

report at the time of sentencing and clearly had an opportunity to review

Garcia’s history and consider his demeanor and characteristics.       Thus, the

record confirms that the trial court did not abuse its discretion.

      The learned Majority states that it is relying upon the record to

substantiate its contention that the trial court utilized § 7508 in fashioning

Garcia’s sentence. I must respectfully disagree that the record supports this

conclusion, given that the trial court never mentioned § 7508 when fixing

Garcia’s punishment. The Majority correctly notes that the trial court denied

Garcia’s pre-trial motion to preclude consideration of § 7508 at sentencing.

However, since the trial court denied Garcia’s motion before Alleyne was


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issued, its decision was legally correct. I do not believe that the trial court’s

correct disposition of a pre-trial motion supports a finding that the trial court

imposed an illegal sentence.       The learned Majority also observes that the

parties    “operat[ed]   under    the   assumption   [at   sentencing]   that   the

mandatory sentence was in play.” Majority Memorandum at 7. Again, since

the trial court sentenced Garcia before Alleyne was issued, there is little

doubt that this was true.        Nevertheless, this says nothing about whether

§ 7508 impermissibly influenced the trial court’s sentencing determination.

      The Majority next suggests that, “Garcia’s sentence would have been

illegal if the trial court had not sentenced Garcia pursuant to section

7508[.]”    Majority Memorandum at 8 (emphasis omitted).           The Majority’s

assertion that the trial court sentenced Garcia pursuant to § 7508 stands in

stark contrast to its immediately prior observation that the “trial court did

not specify that it was utilizing the mandatory minimum sentence

contained in section 7508(a)(2)(i) in fashioning Garcia’s sentence[.]”

Majority Memorandum at 7 (emphasis added). This inherent tension in the

positions advanced by the Majority leads me to conclude that the only link

between § 7508 and the sentence imposed in this case emerges from the

inferences drawn by the Majority itself. It cannot be both ways, however. If

the trial court sentenced Garcia pursuant to § 7508, then it would have said




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so.4   Yet, as the Majority observes, it did not.              Instead, the sentencing

transcript   makes      clear    that   Garcia’s   extensive    criminal   history   and

remorseless attitude led the court to impose a harsher sentence. Nothing in

Alleyne forbids this.       Alleyne simply held that all factors supporting the

application of a mandatory minimum sentence had to be determined by a

jury beyond a reasonable doubt.                Alleyne did not consider, much less

invalidate, a sentencing court’s inherent discretionary authority to enhance

punishment based upon factors such as a defendant’s criminal history or

remorseless demeanor.           Equally important, no Pennsylvania decision issued

in the wake of Alleyne has so held. Since there is no basis in the record to


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4
  Although I take the trial court at its word that it did not rely on § 7508 in
fixing Garcia’s sentence, I do not do so in a vacuum. Since the trial court
sentenced Garcia 13 days before the issuance of Alleyne, it had no reason
to “hide the ball” with respect to any alleged reliance on § 7508. My review
of the transcript of Garcia’s sentencing hearing confirms, however, that the
court never mentioned § 7508 at sentencing.

The Majority sees the issue differently. Because Garcia’s sentence exceeds
the mandatory minimum, the Majority concludes that the trial court relied,
at least in part, on § 7508. Hence, the Majority finds improper reliance upon
§ 7508 from the trial court’s pre-trial rulings, the respective contemplation
of the parties, and the court’s Rule 1925(a) opinion. However, reference to
the transcript of Garcia’s sentencing hearing is absent from the Majority’s
substantive analysis.

Because a sentencing transcript offers the most probative information
regarding what has led a trial court to impose a particular sentence, I
believe that the most reasonable inference to draw in this case is that the
sentencing court did not rely on § 7508 in fixing Garcia’s punishment.




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assert that Garcia received a mandatory minimum sentence under § 7508,5

or that the trial court considered any other impermissible factor6 in imposing

its sentence, I would not hold that Garcia’s sentence was unlawful.

          Lastly, the Majority maintains that Garcia’s stipulation at trial to the

weight of seized contraband is not grounds to distinguish this case from

Alleyne.        In advancing this view, the Majority points to this Court’s

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc), Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

and Cardwell, supra.          While I agree that these decisions foreclose any

possibility of distinguishing this case from Alleyne because of Garcia’s

stipulation at trial, I do not believe that these decisions furnish a basis for

relief.     In its Rule 1925(a) opinion, the court referred to Garcia’s trial

stipulation in an attempt to distinguish Alleyne. We should recall, however,

that the trial court issued its opinion on June 13, 2014, months before our

decisions in the above-cited cases. Our decision in Newman was issued on

August 20, 2014, Valentine was filed on October 3, 2014, and Cardwell

was issued on November 25, 2014.               Thus, although the trial court’s legal

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5
  Since Garcia did not receive a mandatory minimum sentence under
§ 7508, I would distinguish the case law applying Alleyne to matters
pending on direct appeal.
6
   A defendant’s criminal history does not trigger the constitutional
protections described in Alleyne.




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conclusions (in its Rule 1925(a) opinion) with respect to Garcia’s stipulation

ultimately proved incorrect, these determinations were not necessarily

erroneous when they were initially made. More significantly, the trial court’s

analysis of this issue represented merely an alternative to its dispositive and

unrefuted position that it did not consider § 7508 in imposing Garcia’s

sentence.

      In sum, the learned Majority holds as a matter of law that the trial

court imposed an illegal sentence because it used the mandatory sentencing

provision found at § 7508 in determining Garcia’s sentence.       To reach its

conclusion, the Majority examines this case as a challenge to the legality of

Garcia’s sentence. I would hold that, because § 7508 is alleged only to have

influenced the trial court’s imposition of a statutorily authorized punishment,

the issue in this case implicates discretionary review.   Under a deferential

standard, I would find no abuse of the trial court’s discretion. At Garcia’s

sentencing hearing, the court never mentioned § 7508 in assessing the

penalty that it imposed. Instead, the court focused exclusively on Garcia’s

persistent involvement in criminal activity and his lack of remorse for his

actions. Even if other parts of the record contained references to § 7508, of

which the trial court was undoubtedly aware, this does not establish that

§ 7508 influenced the trial court’s sentencing determination where Garcia’s

sentencing transcript so overwhelmingly demonstrates that the trial court

concentrated on other, entirely proper, factors in imposing a reasonable


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punishment. I also do not believe that the trial court’s legal rulings support

the learned Majority’s position and I am reluctant to criticize the trial judge’s

rulings in hindsight. For each of these reasons, I respectfully dissent.




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