J-A04027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    RANDALL DALE,                                :
                                                 :
                       Appellant                 :     No. 3938 EDA 2017


           Appeal from the Judgment of Sentence, October 20, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0005693-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY KUNSELMAN, J.:                                   FILED MAY 02, 2019

        Randall Dale appeals from his judgment of sentence of 5 to 15 years in

prison and 5 years of probation.               Dale raises three challenges to the

discretionary aspects of his sentence.               However, because Dale failed to

preserve two of his challenges for our review, and the remaining challenge is

meritless, we affirm.

        On October 20, 2017, Dale entered an open guilty plea to burglary,

aggravated assault, conspiracy to commit aggravated assault, and possessing

an instrument of a crime. 1 The court imposed the above aggregate sentence.

Dale filed a timely motion to modify sentence, which the trial court denied

without a hearing on November 6, 2017. This timely appeal follows. Both

Dale and the trial court have complied with Pa.R.A.P. 1925.
____________________________________________


1   18 Pa.C.S.A. §§ 3502, 2702, 903, and 907.


* Retired Senior Judge assigned to the Superior Court.
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        On appeal, Dale challenges the discretionary aspects of his sentence,

arguing that the trial court imposed an excessive and unreasonable sentence

in 1) failing to consider the sentencing guidelines; 2) improperly focusing on

the nature of his crime and his prior criminal record, factors the guidelines

already account for, resulting in an improper “double counting, and; (3) failing

to give proper consideration to Dale’s rehabilitative needs. See Dale’s Brief

at 3.

        “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).

        An appellant challenging the discretionary aspects of his sentence must

invoke this Court's jurisdiction by satisfying a four-part test:

           (1) whether appellant has filed a timely notice of appeal,
          see Pa.R.A.P. 902 and 903; (2) whether the issue was
          properly preserved at sentencing or in a motion to
          reconsider and modify sentence, see 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

        The Commonwealth draws our attention to the test’s second prong.

Commonwealth’s Brief at 10. It contends that Dale failed to raise his first two

appellate issues either in the sentencing proceeding or in his motion to modify


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sentence. Our review of the sentencing transcript and Dale’s motion to modify

supports the Commonwealth’s contention.

      Dale first presented his claim that the sentencing court failed to consider

the sentencing guidelines in his concise statement of errors. His second claim,

where he argues the trial court “double counted” certain factors, first appears

in his appellate brief. Thus, because Dale failed to preserve these challenges

at sentencing or in his post-sentence motion, we are unable to review these

claims. See Moury, supra; Pa.R.Crim.P. 720.

      Regarding his third issue, Dale timely filed a notice of appeal, preserved

his claim in a post-sentence motion, and included in his brief an appropriate

Pa.R.A.P. 2119(f) statement. We must now determine whether Dale raised a

substantial question that the sentence is inappropriate under the sentencing

code and, if so, review the merits.

      A substantial question must be evaluated on a case-by-case basis.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). A

substantial question exists only where an appellant advances a colorable

argument that the sentencing judge's actions were either inconsistent with a

specific provision of the Sentencing Code, or contrary to the fundamental

norms which underlie the sentencing process. Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly

excessive may raise a substantial question if an appellant's Pa.R.A.P. 2119(f)

statement sufficiently articulates the manner in which the sentence was




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inconsistent with the Code or contrary to its norms. Commonwealth v.

Mouzon, 812 A.2d 617, 627–28 (Pa. 2002).

      This Court has held that “an excessive sentence claim – in conjunction

with an assertion that the court failed to consider mitigating factors- raises a

substantial question.” Commonwealth v. Cardwell, 117 A.3d 763, 770 (Pa.

Super. 2015).    We conclude that Dale’s challenge to the imposition of his

sentence as excessive and unreasonable, together with his claim that the court

failed to consider his rehabilitative needs and mitigating factors upon

fashioning its sentence, presents a substantial question. Thus, we grant his

petition for allowance of appeal and address the merits of his claim.

      The following principles apply to our substantive review of Dale’s claim.

“When reviewing sentencing matters, this Court must accord the sentencing

court great weight as it is in the best position to view the defendant’s

character, displays of remorse, defiance or indifference, and the overall effect

and nature of the crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134

(Pa. Super. 2009). “We cannot re-weigh the sentencing factors and impose

our judgment in the place of the sentencing court.”           Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa. Super. 2009). Rather, we review the trial

court’s determination for an 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.


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

      Moreover, upon appellate review, we are guided by the following

principles:

         § 9781. Appellate review of sentence

                                     ***

          (c) Determination on appeal.—The appellate court shall
         vacate the sentence and remand the case to the sentencing
         court with instructions if it finds:

            (1) the sentencing court purported to sentence within the
         guidelines but applied the guidelines erroneously;

            (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable;
         or

           (3) the sentencing court sentenced outside the guidelines
         and the sentence is unreasonable.

         In all other cases the appellate court shall affirm the
         sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

      Here, the trial court sentenced Dale to a term of 3 to 10 years of

imprisonment for burglary, a consecutive term of two to five years of

imprisonment for aggravated assault, a concurrent term of two to five years

of imprisonment for conspiracy, and a consecutive five-year probationary term

for possessing an instrument of crime. As the trial court noted at sentencing,

these sentences were within the applicable guideline ranges.       See N.T.,

10/20/17, at 56-57. Thus, in order to vacate Dale’s aggregate sentence, we

must conclude that it is clearly unreasonable.


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      Dale argues, “the [trial] court seemed to exclusively focus on the nature

of the offenses, [his] prior criminal history, and what the [trial] court believed

was a lack of true remorse, rather than his rehabilitative needs and mitigating

circumstances.” Dale’s Brief at 18.

      A trial court’s sentence “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 community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “When imposing sentence,

a court is required to consider the particular circumstances of the offense and

the character of the defendant. In considering these factors, the court should

refer to the defendant’s prior criminal record, age, personal characteristics ad

potential for rehabilitation.”   Antidormi, 84 A.3d at 761 (citations and

quotation marks omitted).

      Dale’s assertion is belied by the record. First, the sentencing hearing

was conducted after a presentence investigation (“PSI”) and the court’s review

of the PSI. We presume that when the sentencing court reviewed a PSI, that

the court properly considered and weighed all relevant factors in crafting a

defendant’s sentence. See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.

Super. 2013).     Hence, we begin our review with the presumption the

sentencing court here weighed all relevant factors, including mitigating

factors, concerning Dale appropriately.

      Further, the transcript from the sentencing hearing reveals the

following. During his allocution, Dale apologized to the court for his crimes

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and acknowledged having a drug problem. Dale spoke of his past efforts to

stay clean, indicating he had not used drugs for a year, aside from methadone.

Dale explained that after his brother died, he relapsed and that he wanted a

county sentence so he could have access to a methadone treatment facility

“to take the drugs away.” N.T., 10/20/17 at 49.

        The trial court heard additional mitigating evidence. Specifically, that

Dale had the support of both of his parents and that he attended college. Id.

at 8.    Dale’s counsel also highlighted that Dale had served in the Army

Reserves, he gained employment after his discharge, had no juvenile record,

and was treated for mental health issues. However, the court observed that

“despite the fact that [Dale] had a college degree, [he had] been arrested five

times resulting in three convictions, [imprisoned] twice, two violations, both

of which resulting in revocation.         One violation pending as a result of the

incident [in this] matter.” Id. at 53.

        Before imposing Dale’s sentence, the trial court stated that “[it did not]

think [Dale had] remotely come to grips with or recognized in a truly

remorseful way the level of violence that [he] exercised.” Id. at 50.2 As this

Court has observed, the sentencing court is in the best position to make

____________________________________________


2 The “violence” the trial court refers to occurred when Dale and his sister
attacked and robbed a woman who had allowed Dale to temporarily live with
her. Dale beat the victim, punching her several times and causing her eye to
swell and turn black and blue. He then struck her in the mouth with a blunt
object, possibly a broom handle, causing several of her teeth to fall out. Dale’s
sister held the woman down while holding a knife to her throat.


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determination about an offender’s “character, defiance, and indifference”

when determining the length of a sentence of incarceration. Commonwealth

v. Malovich, 903 A.2d 1247, 1254 (Pa. Super. 2006). Therefore, there is no

basis for us to question the sentencing court’s credibility determination of

Dale.

        Contrary to Dale’s assertion, the record reflects the trial court carefully

considered his rehabilitative needs when it imposed his sentence.              For

instance, although the court ultimately sentenced him to state time

incarceration, it specifically committed him to the county jail before moving

him to the state prison, so that Dale could be weaned off methadone gradually.

N.T., 10/20/17, at 57-58. The court additionally ordered him to complete a

drug and alcohol evaluation upon transfer to state and to comply with any

recommended treatment. Id. at 58.

        Further, the trial court summarized in its opinion,

              Despite [Dale’s] argument to the contrary, the guidelines
           were considered by this [c]ourt and the [c]ourt took into
           account the general standards for sentencing as required by
           42 Pa.C.S.A. § 9721(b). This [c]ourt clearly considered the
           protection of the public as well as the gravity of the offense
           as it relates to the impact on the life of the victim and the
           community. Furthermore, this [c]ourt factored into its
           decision the rehabilitative needs or prospects of
           rehabilitation for [Dale]. As previously stated, this [c]ourt
           considered all relevant factors in sentencing [Dale].

Trial Court Opinion, 6/12/18, at 9.

        Upon review of the record, we agree with the trial court, and conclude

that Dale has failed to demonstrate that any of his sentences, which fell within

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the applicable guideline ranges, were clearly unreasonable. Thus, we discern

no abuse of discretion in the sentencing court’s decision to impose an

aggregate term of incarceration of 5 to 15 years, followed by 5 years of

probation.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/19




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