J-S23045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
                   v.                   :
                                        :
AMIR FEATHERSON,                        :
                                        :
                    Appellant           :     No. 2256 EDA 2014

       Appeal from the Judgment of Sentence Entered May 9, 2014,
             in the Court of Common Pleas of Lehigh County,
          Criminal Division, at No(s): CP-39-CR-0005456-2012

BEFORE:    DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED JUNE 11, 2015

     Amir Featherson (Appellant) appeals from a judgment of sentence

entered after he pled nolo contendere to aggravated assault. We vacate the

judgment of sentence and remand for resentencing.

     The background underlying this matter can be summarized as follows.

            On March 31, 2014, [Appellant] pleaded nolo contendere
     to aggravated assault. Additional charges of aggravated assault,
     possession of a firearm by a minor, recklessly endangering
     another person, and criminal conspiracy were not pursued by the
     Commonwealth.       [The trial court] ordered a pre-sentence
     investigation (PSI), and on May 9, 2014, [the court] sentenced
     the defendant to serve 10 to 20 years in a State Correctional
     Institution.…

           The incident that gave rise to the charges in this case
     occurred on April 22, 2012. At approximately 11:00 PM, Joseph
     Ortiz was seated in the back of a Nissan Altima in the 500 block
     of North New Street in Allentown when he was shot in the back.
     Ortiz advised his friends he was hit, and they drove him to the
     hospital.   Ultimately, Ortiz’s injuries left him permanently
     paralyzed from mid-chest down.

*Retired Senior Judge assigned to the Superior Court.
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            When police arrived on scene, they discovered over 30
     shell casings from three different caliber weapons and a blood
     trail. Officers followed the blood trail to the area of North Utica
     Street and discovered [Appellant] suffering from a gunshot
     wound to the back of his left knee. He was transported to the
     hospital and subsequently told police he was walking home when
     he heard gunshots and was shot in the leg. Through their
     investigation, police recovered video footage from a market on
     the southwest corner of New and Allen Streets. The footage
     shows three individuals walking into the area of the shooting,
     getting within 20 feet of the Nissan Altima, and then firing shots.
     The three individuals are then seen running from the scene as
     shots are fired at them.[1] One of the individuals is seen holding
     what appears to be a handgun and is limping in portions of the
     video. The path taken by this individual is consistent with the
     blood trail discovered by police. Blood samples taken from the
     trail matched the DNA profile of [Appellant]. Additionally, the
     clothing seen on the third individual is consistent with the
     clothing taken from [Appellant].

           [Appellant’s] date of birth is February 2, 1997, and he was
     15 years old at the time of this crime. Prior to his nolo plea,
     [Appellant] sought to have his case transferred to juvenile court.
     Following a hearing, [the trial court] denied the request, finding
     [Appellant] failed to meet his burden….

                                    ***

           On May 9, 2014, [Appellant] appeared for sentencing. At
     the time, [his] prior record score was 0. The aggravated assault
     charge carries an offense gravity score of 11, making the
     standard range minimum 54 to 72 months, plus or minus 12
     [months] for the aggravated and mitigated ranges, with a
     statutory maximum of 10-20 years[ in prison].




1
 To be clear, according to the Commonwealth’s recitation of the evidence at
both the guilty plea colloquy and the sentencing hearing, neither Mr. Ortiz
nor anyone else in the Nissan Altima fired shots. They were caught in the
middle of an exchange of shots fired by Appellant’s group and a group of
unknown individuals.


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Trial Court Opinion, 10/7/2014, at 1-3 (unnecessary capitalization and

footnote omitted).

     Appellant timely filed a post-sentence motion.     Before the trial court

could rule on that motion, Appellant pro se filed a notice of appeal, which

this Court eventually dismissed as duplicative of this appeal.    On July 23,

2014, the trial court held a hearing to address Appellant’s post-sentence

motion. The court denied the motion on the day of the hearing.

     Appellant timely filed a notice of appeal.      The trial court directed

Appellant to comply with Pa.R.A.P. 1925(b).        Appellant filed a 1925(b)

statement, and the trial court subsequently issued an opinion in compliance

with Pa.R.A.P. 1925(a).    On appeal, Appellant challenges the discretionary

aspects of his sentence.

     It is well settled that, with regard to the discretionary aspects of
     sentencing, there is no automatic right to appeal.

        Before [this Court may] reach the merits of [a challenge to
        the discretionary aspects of a sentence], we must engage
        in a four part analysis to determine: (1) whether the
        appeal is timely; (2) whether Appellant preserved his
        issue; (3) whether Appellant’s brief includes a concise
        statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of
        sentence; and (4) whether the concise statement raises a
        substantial question that the sentence is appropriate under
        the sentencing code.... [I]f the appeal satisfies each of
        these four requirements, we will then proceed to decide
        the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).



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      Appellant timely filed a notice of appeal, and his brief contains a

concise statement of the reasons relied upon for allowance of appeal. In his

concise statement, Appellant presents a number of concerns regarding his

sentence. However, his primary claim is that the trial court erred by failing

to offer a statement of its reasons for deviating from the sentencing

guidelines.    Appellant’s Brief at 9.        Appellant preserved this claim by

presenting    it   in   his   post-sentence   motion.    Post-Sentence       Motion,

5/16/2014, at ¶¶ a)-c).          Moreover, such a claim raises a substantial

question. See Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.

Super. 2009) (“This [C]ourt has found that a claim the trial court failed to

state its reasons for deviating from the guidelines presents a substantial

question for review.”).

      Our standard of review in sentencing matters is well settled:

         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.

Id. (citations omitted).

      Regarding the merits of Appellant’s claim, we are guided by this

Court’s opinion in Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super.

1995).   In Byrd, the trial court stated, on the record, its reasons for



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sentencing Byrd in the aggravated range of the sentencing guidelines.

However, the record reflected that the trial court actually sentenced Byrd in

excess of the aggravated range. Thus, on appeal to this Court, Byrd argued

that the trial court abused its discretion by misapplying the sentencing

guidelines and by failing to provide sufficient reasons for sentencing him

outside of the guidelines.

      This Court responded to Byrd’s argument as follows.

           While deviation from the guidelines is permitted, the
      Sentencing Code requires that the court place of record its
      reasons for such deviation. The Superior Court has held that

         [a]t the minimum, the court must indicate that it
         understands the sentencing guideline range, in those cases
         in which the court deviates from the guidelines.

             As noted above, in every case where sentence has
         been imposed, the court then must make as part of the
         record and disclose in open court at the time of
         sentencing, a statement for the reasons for the sentence.
         However, the Sentencing Code imposes an additional
         requirement where the sentence is outside the guidelines
         and that is there must be a contemporaneous written
         statement of the reasons for deviation from the guidelines.
         Where the trial judge deviates from the sentencing
         guidelines ... he must set forth on the record, at
         sentencing, in the defendant’s presence, the permissible
         range of sentences under the guidelines and, at least in
         summary form, the factual basis and specific reasons
         which compelled the court to deviate from the sentencing
         range.     The Act states that failure to provide an
         appropriate contemporaneous written statement shall be
         grounds for vacating the sentence and resentencing the
         defendant. In the instant case the court did not advise the
         defendant what the sentencing guidelines provided as far
         as the range of sentence, and did not state why he
         deviated from the sentencing guidelines.



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           [Byrd’s] sentencing transcript reveals that the sentencing
     court failed to set forth in [his] presence the permissible range
     of sentences under the guidelines.          Moreover, while the
     sentencing court did provide reasons for the sentence imposed,
     these reasons were advanced to support a sentence in the
     aggravated range. Nowhere did the court indicate that it was in
     fact sentencing [Byrd] outside of the guidelines and provide a
     contemporaneous statement of its reasons for such deviation….

Byrd, 657 A.2d at 963-64 (citations omitted). For these reasons, this Court

vacated Byrd’s sentenced and remanded to the trial court for resentencing.

     Here, it is uncontested that:    Appellant had a prior record score of

zero; Appellant’s aggravated assault conviction carried an original gravity

score of 11; and Appellant was subject to the “deadly weapon enhancement-

used.” Thus, the sentencing guidelines dictate that: the standard minimum

sentence in this case is 54-72 months of imprisonment; the mitigated range

is 42 to 54 months of imprisonment; and the aggravated range is 72-84

months of imprisonment. 204 Pa.Code § 303.17(b).

     At the beginning of Appellant’s lengthy sentencing hearing, the trial

court properly stated that the standard range sentence is from 54 to 72

months. N.T., 5/9/14, at 5. However, the court never mentioned what the

mitigated or aggravated ranges were for Appellant’s sentence.      In other

words, the court failed to set forth in Appellant’s presence the permissible

range of sentences under the guidelines.

     Moreover, while the trial court provided reasons for the sentence it

imposed, those reasons were advanced to support a sentence in the




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J-S23045-15


aggravated range. Id. at 89 (“This is an aggravated range sentence for the

following reasons: …”). Yet, the court sentenced Appellant to a minimum of

ten years in prison, which falls outside of the aggravated range. The court

never stated that it was sentencing Appellant outside of the aggravated

range nor did it provide a contemporaneous reason for such a deviation.

      For these reasons, we vacate Appellant’s judgment of sentence and

remand the matter for resentencing.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/11/2015




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