J-S58016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAQUILLE DUGAN                            :
                                               :
                       Appellant               :   No. 154 WDA 2018

             Appeal from the Judgment of Sentence January 3, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0006965-2016


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 09, 2018

        Shaquille Dugan (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to robbery1 and related offenses.        Appellant

challenges the discretionary aspects of his mitigated-range sentence. Upon

review, we affirm.

        On October 10, 2017, Appellant entered an open guilty plea to two

counts of robbery, two counts of theft by unlawful taking,2 and one count of

conspiracy.3 Appellant admitted that on May 10, 2016, while employed as a

manager at an Auntie Anne’s store at Ross Park Mall, he stole money from the


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1   18 Pa.C.S.A. § 3701(a)(1)(ii).

2   18 Pa.C.S.A. § 3921(a).

3   18 Pa.C.S.A. § 903(a).
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store’s safe, cut the wires on the security cameras, and placed the security

monitor in the store’s dryer. N.T. Guilty Plea, 10/10/17, at 9. Appellant told

police that he was upset because the store’s “management was writing him

up and demoting him, and not promoting him.” Id. The store terminated

Appellant’s employment.      On May 25, 2016, 15 days after the incident,

Appellant appeared at the store again, this time accompanied by a man who

Appellant referred to as “Midnight.” N.T. Sentencing, 1/3/18, at 10. Midnight

displayed a gun and ordered two employees to open the safe.              Although

Appellant covered his face, the employees recognized him and asked why he

was “doing this.” Id. at 15. Appellant responded, “Yes, this is serious. Yes

this happening.” Id. Midnight took approximately $850 and a cellphone from

one of the employees before he and Appellant fled. Midnight subsequently

gave Appellant $100. Id. at 33. Midnight was not apprehended. Id. at 29.

      On January 3, 2018, the trial court, after reviewing a pre-sentence

investigation report, conducted a sentencing hearing.           Defense counsel

discussed at length Appellant’s “incredibly difficult young childhood” — e.g.,

his mother was a drug addict, Appellant’s birth father was “not involved in

[his] life at all,” Appellant lived “with a variety of crack addicts in the house,”

was given drugs before he was 10 years old, and his stepfather beat and

assaulted him. Id. a 6-7. In his teenage years, Appellant “was committed

because of a threat of suicide.” Id. at 8. When he was 15 years old, “one of

his only family members that was loving to him, his grandmother, died,” and


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distraught, Appellant committed arson. Appellant was charged as an adult,

pled guilty, and served 2½ years of imprisonment; he also pled guilty to

another charge of arson. Id. at 8-9, 15.

        Defense counsel acknowledged Appellant’s commission of Auntie Anne’s

robbery, but argued that he “was not the mastermind.” Id. at 14-15. Counsel

argued that due to Appellant’s background, “when he is offered companionship

[or] a positive response . . . , especially someone who he likes, he is highly

suggestible.” Id. at 10. Counsel also averred that Appellant, who was not

RRRI eligible,4 had been making progress with mental health treatment with

Mercy Behavioral Health, and had obtained a new job. Id. at 12.

        Appellant addressed the court, stating that he did not personally know

Midnight, but merely knew his reputation as a drug addict.          Id. at 32.

Appellant explained that he agreed to give Midnight a jitney ride to Ross Park

Mall, but when they arrived, Midnight brandished a gun and told Appellant

that Midnight would rob the Auntie Anne’s store. Id. at 30-31. Appellant

initially told Midnight that he did not want to get involved — and at sentencing

Appellant acknowledged that Midnight did not force him with a gun — but

nevertheless, Midnight told Appellant “that [he] had to go in.” Id. at 31, 35.

Appellant went into the store alone, returned to the car, and reported to

Midnight that there were two or three people inside.       Id. at 31.   Finally,



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4   Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. §§ 4501-4512.

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Appellant stated that he has two children, had a good relationship with his

girlfriend, and “believe[d] that [he could] do better.” Id. at 35-36.

      The Commonwealth acknowledged Appellant’s “deplorable” childhood,

but noted that Appellant “really did not assist officers in obtaining information

about his accomplice Midnight.” Id. at 31. The Commonwealth requested a

sentence of 5 to 10 years plus probation. Id. at 44.

      The trial court found Appellant’s explanation about Midnight incredible:

“In light of everything, I have a very hard time believing that it was

coincidence that somebody randomly on the street decided to hitch a ride with

[Appellant] to the mall and then somehow coerced him into engaging in

escalated behavior from what he had engaged in admittedly a week or so

earlier.” Id. at 45. For Appellant’s two robbery counts, graded as felonies of

the first degree, the trial court imposed sentences in the mitigated range: (1)

40 to 100 months’ imprisonment (3 years and 4 months to 8 years and 4

months); and (2) a consecutive 5 years’ probation. On the conspiracy count,

also graded as a felony of the first degree, the trial court sentenced Appellant

to 5 years’ probation, to run concurrently with the first probationary term.

The trial court did not impose any further penalty on the two theft by unlawful

taking counts, which were graded as misdemeanors of the first degree. The

trial court sentenced Appellant to an aggregate 3 years and 4 months to 8

years and 4 months’ imprisonment and a consecutive 5 years’ probation.

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


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motion, and Appellant took this timely appeal.        Both the trial court and

Appellant have complied with Pa.R.A.P. 1925(b).

      On appeal, Appellant presents two related issues for our review:

      1. Did the Trial Court abuse its discretion imposing an excessive
      term of incarceration that failed to adequately address
      [Appellant’s] need for rehabilitation in connection with his mental
      health issues?

      2. Whether the Trial Court abused its discretion when it focused
      solely on the seriousness of the offense and failed to adequately
      address [Appellant’s] limited involvement in the crime alleged and
      the absence of a need to protect the community?

Appellant’s Brief at 5.

      Appellant’s two issues pertain to the discretionary aspects of his

sentence. Such a challenge:

      is not appealable as a matter of right, but is only subject to review
      if the following four-part test is met:

            (1) the appellant preserved the issue either by raising
            it at the time of sentencing or in a post[-]sentence
            motion; (2) the appellant filed a timely notice of
            appeal; (3) the appellant set forth a concise statement
            of reasons relied upon for the allowance of his appeal
            pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
            raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “The determination of whether a particular issue poses a substantial

question is to be made on a case-by-case basis.”           Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011). A claim that the trial court

failed to consider the defendant’s rehabilitative needs, alone, generally does

not raise a substantial question. Commonwealth v. Griffin, 65 A.3d 932,

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936-937 (Pa. Super. 2013). However, this Court has held that a substantial

question has been presented when an appellant claimed that a “sentence

takes no account of his rehabilitative needs and is disproportionate to the

circumstances when adjudged as a whole.”        Coulverson, 34 A.3d at 143

(emphasis added).

      This Court has stated:

      We review a trial court’s sentencing determination for abuse of
      discretion. Sentencing in Pennsylvania is individualized, and
      requires the trial court to fashion a sentence “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
      community, and the rehabilitative needs of the defendant[.]” 42
      Pa.C.S.A. § 9721(b). The trial court must also consider the
      sentencing guidelines adopted by the Pennsylvania Commission
      on Sentencing. Id.

Baker, 72 A.3d at 662-663 (some citations omitted). “When a sentencing

court has reviewed a presentence investigation report, we presume that the

court properly considered and weighed all relevant factors in fashioning the

defendant’s sentence.” Id. at 663.

      In his first issue, Appellant avers that the trial court imposed an

excessive sentence and failed to address his mental health issues and

rehabilitative needs. He reasons that for the first time in his life, he had the

support and resources to address his mental health issues, and the court failed

to adequately address the harm he would suffer from being removed from

them. Appellant also contends his sentence is excessive in light of his “limited

role in the [r]obbery,” and emphasizes that he apologized for his actions. Id.


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at 22, 25. Finally, Appellant avers that the “extensive period of incarceration

. . . will not serve [his] rehabilitative needs any more than his prior

incarceration” and “would do nothing to avoid the danger to the community.”

Id. at 22.

      In Appellant’s second issue, he alleges that the trial court improperly

focused solely on the seriousness of the offenses, and overlooked his “limited

role in the crime and failed to consider the absence of a need to protect the

community.” Id. at 26. Appellant reiterates that he accepted responsibility

for his role in the robbery and that he did not have a violent character, but

rather, his crimes stemmed from emotional and mental health problems.

      Instantly, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction. See Baker, 72 A.3d at

662. Furthermore, his two related arguments — that the trial court improperly

considered only the seriousness of the crimes to the exclusion of his mental

health issues and rehabilitative needs — raises a substantial question. See

Coulverson, 34 A.3d at 142. Thus, we consider the merits of his claims.

      In its opinion, the trial court reasoned:

      At the January 3, 2018 sentencing hearing, this Court considered
      the pre-sentence report, the [statutory] factors, as well as the
      totality of information presented to fashion an individualized
      sentence. [N.T. Sentencing, 1/3/18, at 2.] Although Appellant
      purports to have taken responsibility, at the sentencing hearing
      he argued that by mere coincidence, an individual who was little
      more than a stranger to him convinced him to go to the mall and
      engage in escalated criminal behavior from that which he
      admittedly engaged in only a week before. [Id. at 30-32.] This
      Court acknowledges that Appellant suffered a traumatic childhood

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      but must also balance Appellant’s need for ongoing treatment with
      the community’s need to be protected from Appellant’s escalating
      criminal behavior.

Trial Court Opinion, 4/20/18, at 4-5 (footnote omitted).

      We presume that the trial court properly considered and weighed all

relevant factors in Appellant’s presentence investigation report. See Baker,

72 A.3d at 662-663. Contrary to Appellant’s suggestion, it is evident from the

record that the trial court considered Appellant’s traumatic childhood and

mental health issues. Furthermore, Appellant’s insistence that he played a

“limited” role in the robbery and accepted full responsibility for his actions is

contrary to the trial court’s factual findings. Finally, we note that the trial

court imposed mitigated-range sentences on all three of Appellant’s first-

degree felony counts, resulting in an aggregate sentence that was 1 year and

8 months less than what the Commonwealth requested.               Two of these

sentences were probationary and ordered to run concurrently. To the extent

Appellant argues that a lengthy sentence in this case was inappropriate

because his past incarceration proved ineffective, see Appellant’s Brief at 22

(“The extensive period of incarceration here will not serve [Appellant’s]

rehabilitative needs any more than his prior incarceration did[.]”), a

defendant’s rehabilitative needs are not the decisive or sole factor in

fashioning a sentence. Instead, the trial court properly weighed “Appellant’s

need for ongoing treatment with the community’s need to be protected from

[his] escalating criminal behavior.” See Trial Court Opinion, 4/20/18, at 5


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(footnote omitted). For these reasons, we find no merit to Appellant’s claim

that the trial court abused its discretion or that his sentence was excessive.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2018




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