J-S32027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TERRELL CURTIS TITTLE                      :   No. 1427 MDA 2017

            Appeal from the Judgment of Sentence August 15, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0002192-2016


BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 07, 2018

        The Commonwealth appeals from the judgment of sentence entered

after Appellee Terrell Curtis Tittle pled nolo contendere to six counts of retail

theft, and one count each of robbery, fleeing or attempting to elude an officer,

and use of an altered document.1 The Commonwealth asserts that the trial

court erred in resentencing Appellee without complying with 42 Pa.C.S. § 9777

and abused its discretion when imposing a sentence below the mitigated range

of the sentencing guidelines. We affirm.

        The underlying facts of this matter include the following.      Appellee

engaged in a series of six retail thefts and one robbery at gas stations and

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*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3929(a)(1), 3701(a)(1)(ii); 75 Pa.C.S. §§ 3733(a), and
7122(3), respectively.
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convenience stores over the span of approximately a month.       The incident of

robbery involved Appellee threatening a cashier with a gun. When the police

attempted to apprehend Appellee following the final theft, he initially did not

stop the vehicle he was driving, and the police executed a rolling roadblock.

Additionally, the registration plate of the car Appellee was driving2 had been

physically altered.

        Appellee was charged at eight different dockets.     On April 6, 2017,

Appellee entered an open no contest plea to six counts of retail theft, and one

count each of robbery, fleeing or attempting to elude an officer, and use of an

altered document.        At sentencing on June 26, 2017, Appellee’s counsel

informed the court that Appellee was suffering from colorectal cancer. The

court rejected Appellee’s cancer diagnosis as a basis to mitigate his sentence

and imposed an aggregate sentence of 6½ to 13 years of incarceration.

        On July 6, 2017, Appellee filed a timely post-sentence motion seeking

reconsideration of his sentence on the basis of his diagnosis of stage IV

colorectal cancer that had spread to his lymph nodes and liver.3       Mot. for

Recons. of Sentence, 7/6/17, at 2 (unpaginated).4 Id.
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2   Appellee had borrowed his girlfriend’s car without her consent.

3 Appellee initially also requested reconsideration of the application of the
deadly weapon enhancement that had affected his sentence for robbery.
However, at the argument on the motion for reconsideration, Appellee
abandoned this argument. See N.T. Mot. for Recons., 8/15/17, at 22.

4Shortly thereafter, Appellee also filed a notice of appeal from the judgment
of sentence, which he withdrew on July 28, 2017.


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        The trial court held an argument on August 15, 2017. Appellee asserted

that he had been at the State Correctional Institution at Camp Hill (SCI Camp

Hill) for approximately one month. He stated that while at SCI Camp Hill, he

had the following issues with his medical treatment:             (1) he missed

chemotherapy treatment; (2) he was only prescribed Tylenol for pain related

to his cancer; and (3) he had stitches removed in an untimely manner. See

N.T. Mot. for Recons., 8/15/17, at 6-17. Appellee’s counsel noted that she

was unable to “get a doctor to [indicate] exactly what [Appellee’s] prognosis

is.”5   Id. at 19. The Commonwealth responded that the original sentence

imposed properly took into consideration the appropriate factors and that

modification would be solely for Appellee’s convenience. Id. at 19-20.

        At the conclusion of the reconsideration hearing, the trial court noted

that it was “rather egregious that [Appellee had not] received even close to

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5   The trial court noted in its opinion pursuant to Pa.R.A.P. 1925(a) that it had

        received a letter of disease confirmation . . . which indicated that
        [Appellee] was diagnosed with rectal cancer by Cancer Care
        Associates of York, Medical Oncology & Hematology. . . . [A]
        second letter of disease confirmation . . . stated that [Appellee]
        had a forty percent (40%) statistical chance [of] surviving one (1)
        year from his diagnosis, twenty percent (20%) chance of surviving
        to two (2) years, and a ten percent (10%) chance of surviving to
        three (3) years. However, pursuant to the letter, if [Appellee]
        were to comply with proper treatment, [his] chances of surviving
        would double.


Trial Ct. Op., 11/30/17, at 2. This letter is not part of the certified record.



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proper medical care while incarcerated at SCI Camp Hill, [and was] going to

modify [the] sentence in these cases.”           Id. at 24-25.   The trial court

resentenced Appellee to an aggregate sentence of one year minus one day to

two years minus two days of incarceration in the York County Prison, to be

followed by five years’ probation on house arrest.6        Id. at 26-27.     The

Commonwealth did not object after the sentence was handed down, nor did

the Commonwealth file a post-sentence motion.

       The Commonwealth filed a timely notice of appeal and court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). The trial court complied with Pa.R.A.P. 1925(a).

       The Commonwealth raises the following issues for our review:

       1. Whether the trial court erred by not following the evidentiary
          and sentencing requirements of 42 Pa.C.S. § 9777[.]

       2. Whether the trial court erred when it granted [Appellee’s] post-
          sentence motion for modification of sentence where there was
          no allegation by [Appellee] in his motion of any failure by the
          Department of Corrections to care for [Appellee]?

       3. Whether the trial court erred when it resentenced [Appellee]
          from six-and-a-half to thirteen years’ incarceration in a state
          correctional facility to a new sentence of time served to two
          years minus two days, followed by a five[-]year probationary
          sentence[.]

       4. Whether the trial court abused its discretion when it
          resentenced [Appellee] to a sentence of less than twelve
          months[’] incarceration for robbery (threat of serious bodily

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6 We note that Appellee was subsequently paroled by the trial court and
released to detainers filed by the State of Maryland.



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           injury) where [Appellee’s] standard guideline sentence range
           was a minimum of seventy-eight to ninety months[.]

Commonwealth’s Brief at 4-5.7

        In its first two issues, the Commonwealth asserts that Appellee’s claims

for resentencing made based on his cancer were governed by 42 Pa.C.S. §

9777.     Id. at 20.     The Commonwealth argues that “[t]here are various

requirements [under Section 9777] for this type of treatment of a defendant

that the trial court neglected to follow.” Id. at 20. These include that Appellee

was required to show that he was not expected to live more than one year

and that no representative from State Correctional Institution Camp Hill was

provided an opportunity to be heard on the motion to modify sentence. Id.

at 23-24, 29-30 (citing 42 Pa.C.S. § 9777(a)(1)). Additionally, the trial court’s

sentence moved him to the York County Prison rather than a medical care

facility. Id. at 23. Because the Commonwealth’s arguments challenge the

statutory authority of the trial court to resentence rather than defer service of

a sentence, they sound in the legality of the sentence and cannot be waived.

Cf. Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006) (en

banc) (noting “[v]arious types of claims do implicate the legality of the

sentence, because they implicate the trial court’s statutory authority to impose

a certain sentence”).

        Section 9777 provides as follows:

        (a) Inmates committed to custody of department.—If an
        inmate is committed to the custody of the department, the
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7   We have reordered the Commonwealth’s issues for ease of disposition.

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     department, the inmate or a person to whom the court grants
     standing to act on behalf of the inmate may petition the
     sentencing court to temporarily defer service of the sentence of
     confinement and temporarily remove the inmate committed to the
     custody of the department, or other facility, for placement in a
     hospital, long-term care nursing facility or hospice care location.
     The following shall apply:

        (1) The sentencing court may approve the petitioner’s request
        to temporarily defer service of the sentence of confinement and
        place the inmate in a hospital or long-term care nursing facility
        under electronic monitoring by the department upon clear and
        convincing proof that all of the following apply:

           (i) The medical needs of the inmate can be more
           appropriately addressed in the hospital or long-term care
           nursing facility.

           (ii) The hospital or long-term care nursing facility requested
           by the petitioner has agreed to accept the placement of the
           inmate and to provide necessary medical care.

           (iii) The inmate is seriously ill and is expected by a treating
           physician to not live for more than one year.

           (iv) There are no writs filed or detainers lodged against the
           inmate and the inmate is not subject to any court order
           requiring the inmate’s presence.

           (v) The placement in the hospital or long-term care nursing
           facility does not pose an undue risk of escape or danger to
           the community. In making this determination, the
           sentencing court shall consider the inmate’s institutional
           conduct record, whether the inmate was ever convicted of a
           crime of violence, the length of time that the inmate has
           been imprisoned and any other factors the sentencing court
           deems relevant.

           (vi) The hospital     or long-term care nursing facility has
           agreed to notify     the department and the court of any
           material changes     in the health status of the inmate, the
           nature of the care   provided or other information required by
           the department.

           (vii) Each agency representing the Commonwealth at a
           proceeding which resulted in an order committing or


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             detaining the inmate, the State or local correctional facility
             housing the inmate and any registered crime victim have
             been given notice and an opportunity to be heard on the
             petition.

42 Pa.C.S. § 9777(a)(1).

      Instantly, although Appellee did not request relief under Section 9777

or meet its requirements, he filed a timely post sentence motion asserting

that his sentence was excessive under the circumstances. Nothing in Section

9777 precludes the trial court from exercising its original sentencing discretion

based on a timely post-sentence motion. Cf. Commonwealth v. Thurmond,

407 A.2d 1357, 1359 (Pa. Super. 1979) (affirming unequal sentences of two

co-conspirators on the basis that “[t]he health of one of the defendants is a

valid consideration in imposing sentence”). Accordingly, we discern no merit

to the Commonwealth’s claim that the trial court was bound to apply Section

9777 at resentencing.

      We next address the Commonwealth’s final two issues, which challenge

the discretionary aspects of sentencing. The Commonwealth asserts that the

motion for modification of sentence was not “stated with specificity and

particularity.”    Commonwealth’s      Brief   at   17-18   (citing   Pa.R.Crim.P.

575(A)(2)(c); 720(B)(1)(a)).       The Commonwealth further argues that

Appellee “did not provide any evidence to support” reducing his sentence. Id.

at 17. Finally, the Commonwealth asserts that the trial court resentenced

Appellee to a sentence below the mitigated range of the sentencing guidelines

for robbery without an adequate factual basis and without providing its



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reasoning on the record. Id. at 24-25 (citing Commonwealth v. Shull, 148

A.3d 820, 837 (Pa. Super. 2016)).

       It is well-settled that a challenge to the discretionary aspects of

sentencing is not reviewable as a matter of right. Commonwealth v. Coss,

695 A.2d 831, 834 (Pa. Super. 1997).             Before reaching the merits of a

discretionary aspects of sentencing issue, this Court must determine whether

the Commonwealth: (1) preserved the issue either by raising it at the time of

sentencing or in a post-sentence motion; (2) filed a timely notice of appeal;

(3) set forth a concise statement of reasons relied upon for the allowance of

its appeal pursuant to Pa.R.A.P. 2119(f); and (4) raises a substantial question

for our review. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011).

       Here, the Commonwealth filed a timely notice of appeal, and the

Commonwealth’s brief contains a Rule 2119(f) statement.            However, the

Commonwealth did not object once the sentence was handed down and did

not file a post-sentence motion.8          Therefore, the Commonwealth failed to

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8We note that the Commonwealth argued at the resentencing hearing that it
would be unreasonable for the trial court to reduce Appellee’s sentence
without evidence being presented to justify the mitigated sentence. See N.T.,
8/15/17, at 19-20. However, this argument was made prior to the sentence
being handed down, rather than as an objection to the sentence after it was
announced. To the extent that the Commonwealth contends that Appellee’s
post sentence motion was too vague, that claim was not raised at the time of
sentencing.




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preserve its discretionary aspects of sentencing issues for review.          See

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006).

       In any event,9 we note that

       [s]entencing 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.

Shull, 148 A.3d at 831 (citation omitted).

       Here, Appellee’s sentence is below the mitigated range of the sentencing

guidelines. Therefore, we would only reverse the trial court if we find that the

circumstances of the case rendered the deviation from the guidelines to be

“unreasonable.” 42 Pa.C.S. § 9781(c)(3).

       Our review of the reasonableness of the deviation is based upon the

factors contained in 42 Pa.C.S. § 9781(d), and the trial court’s consideration

of the general sentencing standards contained in 42 Pa.C.S. § 9721(b).10 See
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9 A claim that a sentence is “excessively lenient and unreasonably deviate[s]”
below the applicable guideline ranges presents a substantial question. See
Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999) (indicating
that the Commonwealth raised a substantial question when it claimed that the
trial court unreasonably relied on certain factors to impose a sentence below
the mitigated range of the guidelines and that the circumstances did not
support such downward deviation).

10 Section 9721(b) states that “the sentence imposed should call for
confinement that is 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



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Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013).                       A

sentencing court, “in carrying out its duty to impose an individualized

sentence, may depart from the guidelines when it properly identifies a

particular factual basis and specific reasons which compelled it to deviate from

the guideline range.” Shull, 148 A.3d at 836 (citation, brackets, and internal

quotation marks omitted).         A defendant’s physical condition is a factor that

the trial court may consider in exercising its discretion to impose

sentence. Commonwealth v. Landi, 421 A.2d 442, 444 (Pa. Super. 1980);

see also Commonwealth v. Flowers, 950 A.2d 330, 333 n.2 (Pa. Super.

2008) (medical history is a factor to be considered in a properly crafted PSI

report).



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community, and the rehabilitative needs of the defendant.”           42 Pa.C.S. §
9721(b).

Section 9781(d) provides:

       In reviewing the record, the appellate court shall have regard for:

       (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. § 9781(d).




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       In Shull, “the Commonwealth assert[ed] that the [trial] court

unreasonably departed from . . . the robbery guideline ranges when it imposed

a below-mitigating range departure sentence designed for the sole purpose of

securing a county sentence for [the defendant].” Id. at 832. As this Court

noted, the trial court “was unable to place [the defendant] in the county facility

unless the District Attorney consented, and she did not consent.         For this

reason, alone, the court sua sponte reduced [the defendant’s] sentence to 11

1/2 to 24 months, less one day, to circumvent the restrictions of [42 Pa.C.S.

§] 9762(b)(2).”11 Id. at 833.

       The Shull Court held that, when reviewed in light of Sections 9721 and

9781, “the [trial] court supplied an inexplicably inadequate factual basis to

substantiate a sentence significantly below the mitigating range for a typical

first-degree felony robbery conviction.” Id. at 836. This was because the

trial court failed to consider the defendant’s individual history and the crime

he committed; instead, the trial court tailored a sentence according to what

was necessary to avoid a State sentence for the defendant, regardless of

whether the term was consistent with the principles in the sentencing scheme.

Id.




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11 Section 9762(b)(2) provides that a sentence with a maximum term of two
years but less than five years shall be committed to the Department of
Corrections unless certain findings are made, including that the attorney for
the Commonwealth has consented to the person being confined in county
prison. See 42 Pa.C.S. § 9762(b)(2).

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        Here, contrary to the Commonwealth’s assertion, the trial court included

its reasoning on the record for resentencing Appellee below the mitigated

guideline range. In sentencing Appellee to a mitigated sentence that could be

served in York County Prison, the trial court stated that it could not “ignore

the fact that [Appellee is] not receiving anything close to what he needs to be

receiving to stay alive.” N.T. Mot. for Recons., 8/15/17, at 21. Moreover, it

is apparent that at resentencing, the trial court considered Appellee’s

individual history and circumstances in the context of his medical needs. See

42 Pa.C.S. §§ 9721(b), 9781(d).

        For these reasons, the trial court’s decision to reduce Appellee’s

sentence based on medical needs was not unreasonable. See 42 Pa.C.S. §

9781(c)(3). Further, we find Shull is distinguishable from the instant matter,

as the trial court’s sentence was based on permissible factors, namely his

medical condition.    See Shull, 148 A.3d at 836; Thurmond, 407 A.2d at

1359.     Thus, even if the Commonwealth had not waived its discretionary

aspects of sentencing claims, it would not be entitled to relief.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/07/2018


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