J-S35020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DARRYL WILLIAMS,

                            Appellant                No. 2465 EDA 2015


        Appeal from the Judgment of Sentence Entered May 15, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0007305-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 14, 2016

       Appellant, Darryl Williams, appeals from the judgment of sentence of

14 to 28 years’ imprisonment, imposed after he was convicted of possession

with intent to deliver a controlled substance (PWID), possession of a

controlled substance, possession of drug paraphernalia, persons not to

possess a firearm, and carrying a firearm without a license.       On appeal,

Appellant solely challenges the discretionary aspects of his sentence. After

careful review, we affirm.

       The facts of Appellant’s case are not pertinent to the issue he presents

on appeal.1      We need only note that Appellant was tried by a jury and

____________________________________________


1
 For a detailed recitation of the facts, see this Court’s prior decision in
Commonwealth v. Williams, No. 3261 EDA 2013, unpublished
memorandum at 1-2 (Pa. Super. filed Jan. 16, 2015) (hereinafter,
(Footnote Continued Next Page)
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convicted of the above-stated offenses. On September 16, 2013, the trial

court sentenced Appellant to an aggregate term of 14 to 28 years’

imprisonment.          Appellant’s sentence       included a five-year   mandatory

minimum term of incarceration for his PWID offense under 42 Pa.C.S. §

9712.1 (Sentences for certain drug offenses committed with firearms).

      Appellant filed a timely direct appeal, see Williams I, raising various

claims, including a challenge to the discretionary aspects of his sentence.

Specifically, Appellant argued, inter alia, that his sentence was manifestly

excessive because the court imposed consecutive, rather than concurrent,

terms of incarceration.         Appellant also alleged that the trial court stated

insufficient reasons for imposing consecutive sentences, and that “the

[c]ourt allowed its personal displeasure with [] [A]ppellant’s exercise of his

right to a jury trial as well as an understandable moral reprehension for gun

violence … to … impact[] the []court’s imposition of consecutive sentences,

where concurrent sentences would have more accurately and fairly balanced

all the relevant considerations….” Appellant’s Brief in Williams I at 25-26.

      Ultimately, this Court in Williams I found Appellant’s challenge to his

sentence meritless.       In reaching this decision, we adopted the trial court’s

rationale for rejecting Appellant’s sentencing claim, as set forth in the court’s



                       _______________________
(Footnote Continued)

“Williams I”) (quoting Trial Court Opinion (TCO I), 2/21/14, at 1-2
(citations to the record omitted)).



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Pa.R.A.P. 1925(a) opinion. See Williams I, No. 3261 EDA 2013, at 4; see

also TCO I at 19-22.

     However, the Williams I panel went on to sua sponte conclude that

Appellant’s mandatory minimum sentence imposed under 42 Pa.C.S. §

9712.1 was illegal under Commonwealth v. Newman, 99 A.2d 86 (Pa.

Super. 2014) (en banc) (holding that in light of the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013),

section 9712.1 was unconstitutional in its entirety).   See Williams I, No.

3261 EDA 2013, at 5-6.       Consequently, the Williams I panel vacated

Appellant’s judgment of sentence and remanded, stating that Appellant

“must be resentenced without regard to section 9712.1.”      Williams I, No.

3261 EDA 2013, at 6.

     On remand, the trial court conducted a second sentencing hearing on

May 15, 2015, and ultimately resentenced Appellant to the same terms of

incarceration as it had originally imposed at the 2013 sentencing proceeding,

although without any mandatory minimum sentence.            Appellant filed a

timely post-sentence motion, which the court denied. He then filed a timely

notice of appeal, and a timely Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court issued a Rule 1925(a) opinion on

October 15, 2015 (hereinafter “TCO II”).

     Herein, Appellant presents one issue for our review:

     1. The trial court abused its discretion in sentencing [A]ppellant
     to an unreasonable and excessive term in light of the
     circumstances of the case, most significantly the consecutive

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      sentences for several overlapping firearm charges, the court’s
      failure to state sufficient reasons on the record for the sentence
      imposed, and in the court’s apparent vindictiveness towards
      [A]ppellant for exercising his right to a jury trial.

Appellant’s Brief at 8.

      In addressing Appellant’s issue, we are mindful of the following legal

principles:

            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.

      Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super.
      2007) (citation omitted).

         The right to appellate review of the discretionary aspects
         of a sentence is not absolute, and must be considered a
         petition for permission to appeal. See Hoch, 936 A.2d at
         518 (citation omitted). An appellant must satisfy a four-
         part test to invoke this Court's jurisdiction when
         challenging the discretionary aspects of a sentence.

              [W]e conduct a four-part analysis to determine: (1)
              whether appellant has filed a timely notice of appeal;
              (2) whether the issue was properly preserved at
              sentencing or in a motion to reconsider and modify
              sentence; (3) whether appellant's brief has a fatal
              defect; and (4) whether there is a substantial
              question that the sentence appealed from is not
              appropriate under the Sentencing Code.

      Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
      2010) (citations omitted).

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).




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      Here, Appellant filed a timely notice of appeal, and preserved his

sentencing claim in a post-sentence motion. His brief also complies with our

appellate rules, as it contains a Pa.R.A.P. 2119(f) concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of his sentence.   See Appellant’s Brief at 9.   The entirety of that

Rule 2119(f) statement provides as follows:

             Allowance of appeal of discretionary aspects of
      [A]ppellant’s sentence should be granted because there is a
      substantial question that the sentence imposed herein is
      contrary to the fundamental norms which underlie the
      sentencing process, most significantly where, after the case was
      remanded by the Superior Court for resentencing, the trial court
      simply resentenced [A]ppellant to a term of incarceration of 14
      to 28 years, primarily accomplished by running consecutive
      sentences for several overlapping firearms charges, which under
      the circumstances of this particular case should have been run
      concurrently and where the trial court failed to reasonably
      articulate a legitimate basis for such an excessive sentence and
      obviously punished [A]ppellant for exercising his right to a jury
      trial by sentencing him to an excessive term of incarceration.

Id.

      Initially, we stress that “[t]he determination of whether a particular

issue raises a substantial question is to be evaluated on a case-by-case

basis.”   Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003)

(citing Commonwealth v. Maneval, 688 A.2d 1198, 1199-1200 (Pa.

Super. 1997)).    Under the specific procedural posture of this case, we

conclude that Appellant has not presented a substantial question for our

review. This Court in Williams I rejected the very same claims Appellant

now raises herein, i.e., his attack on the court’s imposition of consecutive


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sentences, his claim that the court failed to state a reasonable basis for its

sentence of 14 to 28 years, and his assertion that the court improperly

punished him for exercising his right to a jury trial.

      Appellant does not explain how his present claims differ from those

presented in his appeal before the Williams I panel. Indeed, our review of

his argument before that panel reveals that it mirrors the argument he

presents herein. See Appellant’s Brief in Williams I at 19-26; Appellant’s

Brief at 15-21.      Additionally, the trial court’s rationale for imposing

Appellant’s aggregate sentence in 2013 is substantially the same as its

reasons for re-imposing that same aggregate term, absent the mandatory

minimum sentence.      See TCO I at 19-22; TCO II, 10/15/15, at 3-7.      The

Williams I panel not only assessed that rationale and concluded that it did

not constitute an abuse of discretion, but the Williams I panel also adopted

the court’s rationale as its own in affirming Appellant’s judgment of

sentence.     Because Appellant reiterates the same argument that was

unsuccessful before the Williams I panel, we cannot reassess those claims

herein. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)

(stating that a three-judge panel “is not empowered to overrule another

panel of the Superior Court”) (citations omitted).

      Additionally, the only assertion presented by Appellant that was not

addressed by the Williams I panel is his claim that the court erred by

“simply resentence[ing] [him] to a term of incarceration of 14 to 28

years….”    Appellant’s Brief at 9.   Even if we broadly construed Appellant’s

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statement as challenging the trial court’s decision to re-impose the same

term of 5 to 10 years’ imprisonment for his PWID offense, despite that the

mandatory minimum no longer applied, Appellant offers no explanation of

how the court’s decision in this regard “violated a specific provision of the

Sentencing Code or contravened a ‘fundamental norm’ of the sentencing

process.” Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super.

2011) (citation omitted).

       Accordingly,    we    conclude     that   Appellant   has   not   presented   a

substantial    question     warranting     our   review.2    Therefore,    we   affirm

Appellant’s judgment of sentence.
____________________________________________


2
  We acknowledge that in the body of his argument, Appellant presents
another claim that is not set forth in his Rule 2119(f) statement. He asserts
that the trial court erred by interpreting this Court’s “remand order as a
command to resentence [Appellant] on only Count One, [PWID]….” TCO II
at 3. The court elaborated, stating:
       Although the remand order in the case at bar does not contain
       the language “limited resentencing,” the intent of the Superior
       Court is clear - [Appellant] was to be resentenced on Count One
       without regard to the five-year mandatory minimum sentence
       mandated by section 9712.1.          The issue of whether the
       sentences for the various [other] counts should be concurrent or
       consecutive was not the subject of the remand order. The law is
       clear that when a case is remanded to resolve a limited issue,
       only matters related to the issue on remand may be appealed.
       Commonwealth v. Lawson, 789 A.2d 252 (Pa. Super. 2001);
       Commonwealth v. Jackson, 765 A.2d 389 (Pa. Super. 2000).

Id. While Appellant attacks the trial court’s interpretation of our remand
order, we conclude that the court’s reading of our decision in Williams I is
correct. If the Williams I panel had intended that the trial court resentence
Appellant on all counts, we would not have assessed Appellant’s challenge to
(Footnote Continued Next Page)


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             Judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




                       _______________________
(Footnote Continued)

the discretionary aspects of his sentence, specifically the consecutive nature
of the court’s 2013 sentence. Because the Williams I panel did address
that issue, it supports the trial court’s conclusion that William I’s remand
for resentencing was limited to the PWID offense only.




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