J-S77009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PARIS L. GANTZ

                            Appellant                 No. 492 MDA 2016


           Appeal from the Judgment of Sentence February 25, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002557-2015


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

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 09, 2016

        Appellant, Paris L. Gantz, appeals from the judgment of sentence

entered after a jury convicted him of possession of marijuana with intent to

deliver (“PWID”) and illegal possession of a firearm. Gantz contends that the

trial court abused its discretion in imposing a sentence in the aggravated

range of the sentencing guidelines for the PWID conviction. After careful

review, we affirm.

        A detailed presentation of the factual and procedural history of this

appeal is unnecessary given that Gantz’s sole issue on appeal concerns the

discretionary aspects of the sentence imposed. Gantz was convicted of PWID

and possession of a firearm as a previously convicted felon.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      At sentencing, the trial court reviewed a pre-sentence investigation

report (“PSI”) and was correctly informed of the guideline ranges that

applied. Gantz does not challenge the sentence imposed for the firearm

charge. He contends that the trial court was not aware that it was imposing

an aggravated range guideline sentence, and therefore abused its discretion.

      Gantz concedes that this is a challenge to the discretionary aspects of

the sentence imposed. See Appellant’s Brief, at 6-7. “A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted). When challenging the discretionary aspects of the sentence

imposed, an appellant must present a substantial question as to the

inappropriateness of the sentence. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005).

      “Two requirements must be met before we will review this challenge

on its merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. (citation omitted). “Second, the appellant must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.” Id. (citation omitted). That is, “the sentence

violates either a specific provision of the sentencing scheme set forth in the


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Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Tirado, 870 A.2d at 365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

      In the present case, Gantz’s appellate brief contains the requisite Rule

2119(f) concise statement. Furthermore, he preserved his argument against

the discretionary aspects of his sentence through a post-sentence motion.

Thus, he is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence.

      Next, we must determine whether Gantz has raised a substantial

question.   Gantz   concedes that     the   sentence      imposed is within   the

guidelines; his dispute centers on the fact that the sentence is in the

aggravated range of the guidelines. See Appellant’s Brief, at 12. Specifically,

Gantz contends that the trial was unaware that it had imposed an

aggravated range sentence, as it did not acknowledge this fact while

imposing sentence. See id. (“Appellant’s claim on appeal is not primarily

that the sentence is manifestly excessive … but that, where the court is

going to sentence outside the standard range, the record should at least

indicate that the court is aware that it is doing so.”)


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      Assuming, without so deciding, that this claim raises a substantial

question, we conclude that Gantz is due no relief. A sentencing court has

broad discretion in fashioning its sentence. See Commonwealth v. Walls,

926 A.2d 957, 962-63 (Pa. 2007). While the court is required to consider the

sentence ranges set forth in the sentencing guidelines, it is not bound by

them. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

Furthermore, where the sentencing court had the benefit of reviewing a PSI,

we must

      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.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court's discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted).

      Here, the trial court had the benefit of a PSI. Furthermore, the

assistant district attorney presented the correct guideline ranges to the trial

court at the beginning of the sentencing hearing. See N.T., Sentencing,


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2/25/16, at 4. Defense counsel agreed with the prosecutor’s calculation of

the guideline ranges. See id., at 6. Finally, the trial court stated that it had

“taken into account the provisions of the sentencing code.” Id., at 19. Under

these circumstances, we cannot conclude that the trial court was unaware of

the guideline ranges, or that it did not intend to impose an aggravated range

sentence. The trial court was clearly concerned with Gantz’s recidivist nature

and quick return to the narcotics trade after being released from prison on a

previous conviction. See id., at 18-20. This reasoning is sufficient to support

the aggravated range sentence imposed by the trial court. Thus, Gantz’s sole

claim on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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