J-S51044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHRISTOPHER WATSON                         :
                                               :
                      Appellant                :   No. 3081 EDA 2016

               Appeal from the Judgment of Sentence May 5, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004189-2015


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 29, 2017

        Appellant, Christopher Watson, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after he

entered into an open guilty plea to Possession with the Intent to Deliver

(PWID) a controlled substance. Sentenced to an upward departure sentence

that was three months beyond the applicable sentencing guideline’s

aggravated range, Appellant contends the court abused its sentencing

discretion by providing no reason for exceeding the guidelines other than

Appellant’s criminal history, which was already factored in the guideline

range sentences. We affirm.




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      On April 4, 2015, plainclothes police officers arrested Appellant after

observing him retrieve two packets of heroin from a large plastic bag within

his car and sell them to a known heroin user. A search of Appellant’s car

incident to his arrest uncovered nearly five hundred dollars and eight

additional packets of heroin. N.T. 1/27/15, at 7-9, 21.

      On January 27, 2016, Appellant entered an open guilty plea to PWID

and knowingly or intentionally possessing a controlled substance.         At his

sentencing hearing on May 5, 2016, the parties and the court agreed that

Appellant’s offense gravity score of six and prior record score of five resulted

in an applicable standard range guideline sentence of 21 to 27 months’

incarceration, plus or minus six months.       N.T. 5/5/16, at 7.     Appellant

exercised his right of allocution, wherein he apologized for his conduct and

asked the court to consider mitigating circumstances. N.T. at 2-7. Defense

counsel likewise argued for a mitigating sentence given Appellant’s guilty

plea, remorseful attitude, and good behavior while in custody. N.T. at 7-11.

      Prior to imposing sentence, the trial court stated the following:

      Mr. Watson, the reason why [the prosecutor’s] comments or her
      sentencing memo is long is because your criminal record is long.
      I reviewed it and I’m astonished [over] all the crimes that you
      have been convicted of since the time you were 11 years old.
      You got at least one gun case, possibly two. You got all kinds of
      numerous drug convictions.

      And domestic violence convictions to the point that the police
      were standing there while you hit a female right in front of the
      police. I can’t believe such arrogance.




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      You were even on my probation there for a while for possession
      of a controlled substance. Obviously, probation means nothing
      to you. Obviously, looks like a county sentence means nothing
      to you. So I’m going to impose a sentence of 3 to 6 years
      followed by 5 years’ probation.

N.T. at 15-16.

      On May 12, 2016, Appellant filed a Motion for Reconsideration of

Sentence pursuant to Pa.R.Crim.P. 720(A)(1), arguing that the sentence was

above the aggravated range and asking for a “sentence at the low end of the

guidelines.” Post-sentence Motion, 5/12/16 at 2.      In support of Appellant’s

motion, he argued that he had voluntarily waived his right to a trial and pled

guilty, his case was a non-violent drug offense, he did not resist arrest, he is

28 years old with only one prior felony from eight years ago, the sentence

“was above the aggravated range of the sentencing guidelines without

sufficient reason,” and the Commonwealth presented stale evidence of his

involvement with a local gang from nearly ten years earlier. Id. at 2-3. On

September 9, 2016, the court denied Appellant’s motion. This timely appeal

followed.

      Appellant presents one question for our review:

      DID NOT THE TRIAL COURT IMPOSE AN EXCESSIVE AND
      UNREASONABLE SENTENCE BY SENTENCING MR. WATSON
      IN EXCESS OF THE SENTENCING GUIDELINES WITHOUT
      ANY ADEQUATE EXPLANATION, APPARENTLY BECAUSE OF
      A FACTOR, MR. WATSON’S PRIOR RECORD, WHICH WAS
      ALREADY COUNTED BY THE SENTENCING GUIDELINES?


Appellant’s brief at 3.




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      “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). Before we address a challenge to the discretionary

aspects of sentence, we must 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.

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

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

      Our review of the record shows that Appellant timely filed both a post-

sentence motion, in which he requested reconsideration of his sentence, and

a notice of appeal.   However, with respect to whether Appellant’s motion

preserved the specific issue he raises in the present appeal, namely, that the

court departed from the guideline ranges because of a consideration—his

criminal record—already factored in the sentencing guidelines, we observe

that it failed to do so. See supra. Accordingly, we find this aspect to the

present appeal waived.

      To the extent appellant argues that the trial court failed to articulate

sufficient reasons on the record for its upward departure from the guidelines,

he raises a substantial question for our review. See, e.g., Commonwealth

v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002) (citing Commonwealth v. Eby,

784 A.2d 204 (Pa.Super. 2001) (“[T]he sentencing judge must state of


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record the factual basis and specific reasons which compelled him or her to

deviate from the guideline ranges. When evaluating a claim of this type, it is

necessary to remember that the sentencing guidelines are advisory only.”);

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc)

(quoting   Commonwealth         v.   Wagner,     702    A.2d    1084,     1086

(Pa.Super.1997) (“Where the appellant asserts that the trial court failed to

state sufficiently its reasons for imposing sentence outside the sentencing

guidelines, we will conclude that the appellant has stated a substantial

question for our review.”).

      However, the record belies such a claim.

      When the sentence imposed is outside the sentencing guidelines,
      moreover, the court must provide a contemporaneous written
      statement of the reason or reasons for the deviation from the
      guidelines. This requirement is satisfied when the judge states
      his reasons for the sentence on the record and in the defendant's
      presence.

      Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),

reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and

quotation marks omitted).      “A sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question, but the record as a whole must reflect the

sentencing court's consideration of the facts of the crime and character of

the offender.” Id. at 1283.




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       Besides considering Appellant’s prior criminal history, the trial court

considered the information in Appellant’s PSI,1 his continuous drug abuse,

and the apparent futility in imposing another county or probationary

sentence. Thus, because Appellant’s criminal record was not the sole factor

in sentencing him outside the Guidelines,2 we find no abuse of discretion in

the court’s sentence.

     Judgment of sentence is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




____________________________________________


1
  “Where pre-sentence reports exist, we ... presume that the sentencing
judge was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
2
  While a trial court may not consider, as the sole reason for increasing a
sentence, factors already included within the Sentencing Guidelines, “[t]rial
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.” Commonwealth v. Shugars, 895
A.2d 1270, 1275 (Pa.Super. 2006) (emphasis in original) (quoting
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa.Super. 2003)).




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