J-S03041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

C. DIVINE ALLAH

                            Appellant              No. 1507 EDA 2015


             Appeal from the Judgment of Sentence April 22, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007641-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED JANUARY 27, 2016

        Appellant C. Divine Allah appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas following his guilty plea

to two counts of possession of a controlled substance with an intent to

deliver (“PWID”),1 criminal use of a communication facility,2 possession of

drug paraphernalia,3 and possession of a controlled substance by a person

not registered.4 We affirm.



____________________________________________


1
    35 Pa.C.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7512(a).
3
    35 Pa.C.S. § 780-113(a)(32).
4
    35 Pa.C.S. § 780-113(a)(16).
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      At the guilty plea hearing, the assistant district attorney set forth the

following facts:

         On September 9th of 2014[, Officer Gansky and Officer Hill
         from the Bensalem Township Police Department] spoke
         with the confidential informant in reference to a black male
         named Anthony [who] sells heroin and crack cocaine. The
         confidential informant then placed a phone call to Anthony
         at 609-851-7401 and ordered up a “Trenton rack” of
         heroin and crack cocaine for $500.         The confidential
         informant was then issued $500 of pre[-]recorded buy
         money.

         At approximately 6 p.m. Anthony advised the confidential
         informant that he was on-scene at the Parx Casino located
         at 2999 Street Road, Bensalem, Bucks County,
         Pennsylvania. At that time [Officer Gansky and Officer
         Hill] observed the confidential informant meet in the
         parking lot with a black male. The black male was later
         identified as [Appellant].

         [Appellant] and confidential informant were observed
         walking toward a green Ford Explorer. The confidential
         informant entered in the front passenger seat and
         [Appellant] entered into the . . . driver’s seat . . . . While
         inside the vehicle, Officer Gansky could observe the
         confidential   informant    conducting     a   hand-to-hand
         transaction with [Appellant].

         Approximately two minutes later, the confidential
         informant exited from the vehicle.     The [confidential
         informant] then met back with Officer Gansky and turned
         over five bundles, which equated to 44 baggies of heroin
         and two pieces of crack cocaine.

         After retrieving the heroin and crack cocaine, [the] officers
         followed and stopped the Ford Explorer and arrested
         [Appellant].    Within the vehicle the officers found a
         marijuana joint, as well as a soda can with a false bottom.
         When they opened the soda can, it contained the
         prerecorded buy money that had been issued to the
         confidential informant, as well as additional baggies with a
         white powdery substance believed to be heroin.


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           Once taken back to the station, [Appellant] admitted to
           selling both the heroin and crack cocaine to the
           confidential informant earlier that day for $500.

           Those items that were recovered from the confidential
           informant were submitted to the Bucks County Crime
           Laboratory and tested positive for both heroin as well as
           crack cocaine. In terms of grams, the heroin was .93
           grams and the crack cocaine was .51 grams.

N.T. 2/19/15, 15-18.      Appellant agreed that the facts were substantially

correct and admitted he sold drugs to the confidential informant. Id. at 18-

21.

      On February 19, 2015, Appellant pled guilty to the aforementioned

charges.    That same day the trial court imposed the following consecutive

sentences: (1) on the first PWID count, the trial court sentenced Appellant

to 30 to 96 months’ incarceration; (2) on the second PWID count, the trial

court sentenced Appellant to 18 to 60 months’ incarceration; (3) on the

criminal use of a communication facility count, the trial court sentenced

Appellant to 12 to 60 months’ incarceration.     The trial court imposed no

further penalty for the possession of drug paraphernalia and possession of a

controlled substance convictions.

      On February 24, 2015, Appellant filed a pro se motion for modification

of sentence. The clerk of court sent Appellant a letter informing him that the

Bucks County Public Defender’s Office represented him. On March 2, 2015,

new counsel filed an entry of appearance and a motion for reconsideration of

sentence.




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      Following an April 22, 2015 hearing, the trial court granted the motion

for reconsideration.   The trial court re-sentenced Appellant to 12 to 30

months’ incarceration on the criminal use of a communication facility

conviction, decreasing the maximum sentence. The sentences imposed on

the PWID convictions did not change.

      Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issue for our review:

         Did the [trial] court improperly double count [Appellant’s]
         convictions for purposes of sentencing him under the
         sentencing guidelines when, sentencing him in the
         aggravated range, it placed undue reliance on his prior
         convictions?

Appellant’s Brief at 7. Appellant’s issue challenges the discretionary aspects

of his sentence.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).      Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:

         (1) whether the appeal is timely; (2) whether Appellant
         preserved his issue; (3) whether Appellant’s brief includes
         a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the sentencing code.



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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      Appellant raised his discretionary aspect of sentence issue in a timely

post-sentence motion, filed a timely notice of appeal, and included a

statement of reasons relied upon for allowance of appeal pursuant to Rule

2119(f) in his brief.   We must, therefore, determine whether his issue

presents a substantial question and, if so, review the merits.

      “The determination of whether a particular issue raises a substantial

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

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

where a defendant raises a “plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72

(Pa.Super.2012)).

      Appellant maintains the trial court improperly considered his prior

conviction when sentencing him in the aggravated range of the Sentencing

Guidelines because his prior record score was considered to determine his

guideline range. Appellant’s Brief at 12-13. This issue raises a substantial

question.   See Commonwealth v. Goggins, 748 A.2d 721, 727-28

(Pa.Super.2000) (appellant raised substantial question when he alleged court

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“imposed sentence outside the guidelines without stating legitimate reasons

for doing so, instead improperly double-counting [the appellant’s] criminal

history and prior record”).        We will, therefore, address the merits of

Appellant’s claim.

       “Sentencing is a matter vested within the discretion of the trial court

and will not      be   disturbed absent       a manifest abuse         of   discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse

of   discretion   requires   the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”            Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)).

       The trial court did not abuse its discretion when sentencing Appellant.

A trial court is permitted to consider a defendant’s criminal record in

fashioning a sentence, as long as the criminal history is not the sole factor.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006) (“Trial

courts are permitted to use prior conviction history and other factors already

included in the guidelines if they are used to supplement other extraneous

sentencing information.”).

       Although the trial court considered Appellant’s prior criminal history, it

was one of many factors the trial court considered. N.T., 2/19/2015, at 27-

47. The trial court noted that Appellant made a living out of selling drugs.

Id. at 23, 42. The court also considered that Appellant was Recidivism Risk

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Reduction Incentive (“RRRI”) eligible, took responsibility for his actions, and

that Appellant hoped to take care of his mother, who was ill. Id. at 23-47.

The trial court considered the arguments from defense counsel and from the

Commonwealth and considered Appellant’s testimony and allocution at

sentencing.   Id.   At the re-sentencing, the trial court also noted that the

sentence was to act as a deterrent and considered Appellant’s plan to

abstain from alcohol and drug use and his plan to focus on his mother’s

health, as well as Appellant’s acknowledgement that he had planned to

gamble with the money from the drug transaction. N.T., 4/22/15, at 18-19,

27. The trial court provided reasons for the sentence imposed and did not

abuse its discretion when it sentenced Appellant.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2016




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