J-S69038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN GUY,

                            Appellant                  No. 787 EDA 2015


            Appeal from the Judgment of Sentence of March 4, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003258-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 21, 2015

        Appellant, Kevin Guy, appeals from the March 4, 2015 aggregate

judgment of sentence of eight to 20 years of incarceration, imposed after a

jury convicted him of one count of delivery of a controlled substance, one

count of possession of a controlled substance with intent to deliver, and two

counts of possessing drug paraphernalia.1 After careful review, we affirm.

        The trial court detailed the factual and procedural background of this

case as follows:

              On May 8, 2012, at the conclusion of a two-day trial,
              a jury found [Appellant] guilty of delivery of cocaine
              (Count 3), possession with intent to deliver cocaine
              (Count 4) and two counts of drug paraphernalia
              (Counts 7 and 8). The offenses stemmed from a
              controlled buy of cocaine [Appellant] made on March
____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and (32).
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          21, 2011, as well as cocaine and paraphernalia found
          on [Appellant’s] person at the time of his arrest on
          April 13, 2011.

          At trial, the Commonwealth presented the testimony
          of Corporal Edward Kropp, Sr. of the Pottstown
          Borough Police Department. Corporal Kropp stated
          that a controlled buy was arranged between
          [Appellant] and a confidential informant (“CI”) for
          the evening of March 21, 2011, which ultimately
          occurred in the vicinity of the intersection of Beech
          and Evans Streets in Pottstown. The controlled buy
          was witnessed by Officer Michael Long.           (N.T.
          5/7/12, pp. 126-134).

          Corporal Kropp and Officer Long testified in detail
          about the specifics of the controlled buy, during
          which they witnessed [Appellant] meeting and
          walking with the CI.         Officer Long identified
          [Appellant] based upon his prior encounters with
          him. Officer Long observed [Appellant] reach into
          his pocket and appear to hand a small item to the
          CI. The CI returned to Corporal Kropp with a baggie
          containing a white substance believed to be cocaine.
          At trial, the parties stipulated that the substance
          Corporal Kropp retrieved from the CI was .14 grams
          of cocaine. (N.T. 5/8/12, pp. 7-18, 22, 94-106).

          Corporal Kropp arrested [Appellant] on April 13,
          2011, for the above-described delivery of a
          controlled substance.      In conducting a search
          incident to arrest, Corporal Kropp discovered, in the
          right pocket of [Appellant’s] cargo pants, a sandwich
          bag containing eighteen smaller clear baggies, each
          holding a white substance that appeared to be
          cocaine. At trial, the parties stipulated that this
          substance was cocaine and amounted to 3.45 grams.
          (Id. at 23, 27-28).

          Detective James Vinter of the Montgomery County
          Detectives Bureau, Narcotic Enforcement Team, was
          qualified as an expert in the field of narcotics.
          Detective Vinter testified, with a reasonable degree
          of certainty based on his experience and expertise,
          that [Appellant] possessed with the intent to deliver


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          the 18 baggies of cocaine seized at the time of his
          arrest. (Id. at 169-178).

          The conviction on Count 3 had a standard range of
          twenty-one to twenty-seven months, with an
          aggravated range of thirty-three months. [Under
          the then-applicable mandatory minimum sentencing
          provision, i]t also carried a two-year mandatory
          minimum sentence based on the sale occurring
          within 1,000 feet of a school zone. The conviction on
          Count 4 had a standard range of twenty-four to
          thirty months, with an aggravated range of thirty-six
          months.       [Again, under the then-applicable
          mandatory minimum sentencing provision, i]t carried
          a three-year mandatory minimum sentence based on
          the weight of the cocaine and [Appellant’s] prior
          possession with intent to deliver convictions.

          At [Appellant’s] original sentencing hearing on
          November 2, 2012, he did not contest application of
          the mandatory minimum on Count 4, but evidence
          was taken on the issue of the school-zone mandatory
          minimum. Officer Michael Breslin of the Pottstown
          Borough Police Department testified credibly at the
          hearing that the March 21, 2011 drug transaction
          with the CI took place less than 1,000 feet from a
          Montgomery County Head Start school and the
          Begley Hall of Saint Aloysius Parish School.

          Th[e trial] court sentenced [Appellant] to five to
          fifteen years on Count 3, and three to fifteen years
          on Count 4.      No penalty was imposed on the
          paraphernalia convictions at Counts 7 and 8.

          Th[is] Court affirmed [Appellant’s] judgment of
          sentence on direct appeal. Commonwealth v. Guy,
          3169 EDA 2012 (Pa. Super. Sept. 4, 2013). Our
          Supreme Court denied [Appellant’s] petition for
          allowance   of appeal on March        25, 2014.
          Commonwealth v. Guy, 758 MAL 2013 (Pa. Mar.
          25, 2014).

          On August 26, 2014, [Appellant], through counsel,
          filed a motion to modify sentence based on Alleyne,
          which had been decided during the pendency of his
          direct appeal. Th[e trial] court treated the motion as

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            a timely petition under the Post-Conviction Relief Act
            and, with no opposition from the Commonwealth,
            scheduled the matter for a new sentencing hearing.

            On December 2, 2014, th[e trial] court vacated
            [Appellant’s] original sentence and, in an exercise of
            discretion, imposed the same aggregate term of
            incarceration as previously announced. [Appellant]
            timely filed a motion for reconsideration/modification
            of sentence.

            In order to make clear that no mandatory minimum
            sentences were being applied, th[e trial] court
            convened another hearing on March 4, 2015. Th[e
            trial] court ultimately vacated the sentence imposed
            on December 2, 2014, and re-sentenced [Appellant]
            to five to ten years in prison on Count 3, followed by
            a consecutive term of imprisonment of three to ten
            years on Count 4.

            [Appellant] filed a timely post-sentence motion,
            which th[e trial] court denied by Order dated March
            11, 2015, and subsequently complied with th[e trial]
            court’s directive that he produce a concise statement
            of errors in accordance with Pennsylvania Rule of
            Appellate Procedure 1925(b).

Trial Court Opinion, 5/15/15, at 1-4 (footnote omitted).

      On appeal, Appellant presents a single issue for our review:

            WHETHER THE EIGHT[-] TO TWENTY[-]YEAR[]
            SENTENCE OF TOTAL CONFINEMENT IMPOSED BY
            THE TRIAL COURT … WITH RESPECT TO
            [APPELLANT’S] CONVICTIONS FOR VIOLATING THE
            DRUG DEVICE AND COSMETIC ACT IS UNDULY
            HARSH, TOO SEVERE A PUNISHMENT FOR HIS
            PARTICULAR OFFENCE [sic], AND IN EXCESS OF
            WHAT IS NECESSARY FOR THE PROTECTION OF THE
            PUBLIC   AND    THEREFORE   AN   ABUSE   OF
            DISCRETION[?]

Appellant’s Brief at 8.



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      Appellant’s argument pertains to the discretionary aspects of his

sentence. Accordingly, we consider such an argument to be a petition for

permission to appeal.    Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014). Prior to reaching the merits of a discretionary aspects of

sentencing issue, we conduct a four-part analysis to determine whether a

petition for permission to appeal should be granted.      Commonwealth v.

Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal

denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine:

            (1) [W]hether appellant has filed a timely notice of
            appeal, Pa.R.A.P. 902, 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, Pa.R.Crim.P.
            [720]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            [Pa.C.S.A.] § 9781(b).

Id.

      As noted above, Appellant filed a timely post-sentence motion and

notice of appeal.   He also included a Rule 2119(f) statement in his brief.

See Appellant’s Brief at 13-19. We therefore proceed to determine whether

Appellant raised a substantial question for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75


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(Pa. 2013). “A substantial question exists only when the appellant advances

a colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”   Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      Within his petition for allowance of appeal, Appellant contends that the

trial court erred by imposing an excessive sentence “outside the pertinent

Guideline ranges citing reasons already considered, thereby implicating the

discretionary aspects of his sentence in that the trial court sentenced him to

the same sentence he previously received even though the mandatory

minimum sentencing provision of the Drug Device and Cosmetic Act no

longer applied to his case and the Guidelines should therefore have

prevailed.” Appellant’s Brief at 15. Based on this contention, we conclude

that Appellant has raised a substantial question.   See Commonwealth v.

Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004) (Under 42 Pa.C.S.A.

§ 9781(c)(3), a claim that “the sentencing court sentenced outside the

sentencing guidelines,” presents a substantial question.).




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      Although Appellant has successfully sought review of the merits of his

sentencing claim, our review of the record as a whole belies Appellant’s

assertion of trial court error.

      Our standard of review of a challenge to the discretionary aspects of

sentence 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.

            In every case in which the court imposes a sentence
            for a felony or a misdemeanor, the court shall make
            as a part of the record, and disclose in open court at
            the time of sentencing, a statement of the reason or
            reasons for the sentence imposed. The sentencing
            guidelines are not mandatory, and sentencing courts
            retain broad discretion in sentencing matters, and
            therefore, may sentence defendants outside the
            [g]uidelines. In every case where the court imposes
            a sentence ... outside the guidelines adopted by the
            Pennsylvania Commission on Sentencing ... the court
            shall provide a contemporaneous written statement
            of the reason or reasons for the deviation from the
            guidelines. However, this requirement is satisfied
            when the judge states his reasons for the sentence
            on the record and in the defendant's presence.
            Consequently, all that a trial court must do to comply
            with the above procedural requirements is to state
            adequate reasons for the imposition of sentence on
            the record in open court.

            When imposing sentence, a court is required to
            consider the particular circumstances of the offense

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              and the character of the defendant. In considering
              these factors, the court should refer to the
              defendant's prior criminal record, age, personal
              characteristics and potential for rehabilitation.
              Where pre-sentence reports exist, we shall ...
              presume that the sentencing judge was aware of
              relevant information regarding the defendant's
              character and weighed those considerations along
              with mitigating statutory factors. A pre-sentence
              report constitutes the record and speaks for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa. Super. 2014)

(internal citations and quotations omitted).

      At Appellant’s sentencing hearing, the trial court expressly explained,

“And just so there is no confusion and I clarify this once and for all, that the

guidelines are not being applied, I have decided to re-sentence [Appellant]

from the 12/2/14 sentencing.” N.T., 3/4/15, at 2. The trial court continued,

“The [trial c]ourt makes the [pre-sentence report] part of the record. And

once again, I will state the mandatory sentences will not be applied in this

matter.”      Id. at 3.     The trial court then reviewed letters submitted by

Appellant from his daughter. Id. at 4.

      Thereafter, Appellant’s counsel advocated for a sentence within the

guidelines,     and   the    Commonwealth,     after   summarizing   Appellant’s

“substantial prior score” and criminal history, requested “a substantial

sentence, much like one that Your Honor has already handed down in this

case.” Id. at 6, 7-8.

      The trial court then explained its sentencing rationale to Appellant, on

the record, as follows:

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             [T]he [trial c]ourt has considered the guidelines, PPI,
             PSI, and I have considered your age, the information
             about yourself that has been presented. I have
             considered, as I said, the PSI and the evidence and
             circumstances of this offense.

             The facts as to your personal background and
             circumstances are not in dispute, except as noted.
             And this has been established by a verdict of guilty
             after a jury trial.

             After considering these factors, the [trial c]ourt feels
             there is an undue risk that during the period of
             probation or partial confinement you will commit
             another crime, you are in need of correctional
             treatment that can be provided most effectively by
             your commitment to an institution.            A lesser
             sentence would depreciate the seriousness of your
             crime.

             I, therefore, will sentence you to total confinement,
             which the [trial c]ourt feels is proper in this
             circumstance.

Id. at 13-14.

      The trial court added that it was incorporating the notes of testimony

from the November 12, 2012 sentencing hearing “where the [trial c]ourt

presents the reasons why I have sentenced [Appellant] in the aggravated

range,” and expressed:

             The [trial c]ourt further notes that [Appellant] shows
             no remorse or appreciation of his conduct in this
             matter. The [trial c]ourt also takes note of the fact
             that the location where the drugs were found, that
             was a school zone; and the fact that when
             [Appellant] was arrested only just one month later,
             he was found in possession of cocaine.

Id. at 15.



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      In addition to the above reasoning, the trial court referenced

applicable legal authority supporting its sentence, stating:

            Where, as here, the sentencing court had the benefit
            of a presentence investigation report, it is assumed
            to have been “aware of relevant information
            regarding the defendant’s character and [to have]
            weighed those considerations along with mitigating
            statutory factors.” [Antidormi, 84 A.3d at 761]
            (quoting Commonwealth v. Devers, 536 A.2d 12,
            18 (Pa. 1988)). Although the sentencing guidelines
            are not mandatory, a court that imposes a sentence
            outside the guidelines is required to place its reasons
            for doing so on the record. [Antidormi, 84 A.3d at
            760]. In addition to sentencing a defendant outside
            the guidelines, the court also has the discretion to
            impose sentences consecutively.

Trial Court Opinion, 5/15/15, at 6.

      Based on the foregoing, we discern no abuse of discretion by the trial

court. Here, the record establishes that the trial court carefully considered

all of the factors relevant to sentencing and imposed an individualized

punishment tailored to the facts of this case, including (in the trial court’s

well-supported   view)    Appellant’s    significant   need    for   rehabilitative

treatment. We therefore affirm the March 4, 2015 judgment of sentence.

      Judgment of sentence affirmed.




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J-S69038-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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