J-S06020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GEORGE WESTBROOK                           :
                                               :
                      Appellant                :   No. 3693 EDA 2016

         Appeal from the Judgment of Sentence Entered on July 27, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012208-2014


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 23, 2018

        George Westbrook appeals from the judgment of sentence imposed

following his convictions for aggravated assault, persons not to possess

firearms, and possession of an instrument of crime.1 Westbrook claims his

sentence, which was above the standard range of the Sentencing Guidelines,

was an abuse of discretion. We affirm.

        The relevant facts and procedural history are as follows. On May 1,

2014, Westbrook met with Andrew Keeys at Keeys’ apartment. After seeing

a text message in Keeys’ phone, Westbrook became angry and pulled a gun

from his waistband and ordered Keeys to lie on the floor. After a brief

struggle between the two, Westbrook shot Keeys in the area of his left


____________________________________________


1   18 Pa.C.S.A. §§ 2702(a), 6105(a)(1), and 907(a), respectively.
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shoulder. On May 20, 2016, a jury found Westbrook guilty of aggravated

assault and possession of an instrument of crime. The same day, Westbrook

waived his right to a jury trial for the charge of persons not to possess

firearms and after a bench trial, the trial court found him guilty of that

charge. The trial court then ordered a pre-sentence investigation report with

a mental health evaluation.

     The trial court later sentenced Westbrook on July 27, 2016 to a term

of ten to 20 years’ imprisonment for aggravated assault; a consecutive term

of two and a half to five years’ imprisonment for possession of an instrument

of crime; and two and a half to five years’ imprisonment for persons not to

possess firearms to run consecutive to the sentence on the aggravated

assault charge but concurrent to the sentence for the possession of an

instrument of crime charge. Westbrook’s aggregate sentence was 12½ to 25

years’ imprisonment. The sentence was above the aggravated range of the

Sentencing Guidelines.

     Westbrook filed a Post-Sentence Motion on July 29, 2016, which was

denied by operation of law on November 29, 2016. On December 2, 2016,

he filed a timely Notice of Appeal. The trial court ordered, and Westbrook

timely filed, a Concise Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b). On May 24, 2017, the trial court filed its

opinion pursuant to Pa.R.A.P. 1925(a).




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      Westbrook raises one question for our review:

             Did not the lower court abuse its discretion and violate due
             process by imposing an unreasonable aggregate sentence
             of twelve-and-a-half to twenty-five years, a sentence
             above     the   aggravated     guideline   range,   by   not
             differentiating prior arrests and convictions, by issuing an
             above guidelines sentence without stating its reasons for
             doing so, and by failing to state adequate reasons for
             issuing consecutive sentences?

Appellant’s Brief at 3.

      Westbrook challenges the trial court’s discretion in imposing sentence.

As such, we must conduct a four-part analysis before reaching the merits of

his claim. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).

We must determine: (1) whether present appeal is timely, (2) whether the

instant issue argued was properly preserved, (3) whether a statement was

filed pursuant to Pa.R.A.P. 2119(f), and (4) whether there is a substantial

question that the sentence is not appropriate under the Sentencing Code.

Id.

      In the instant case, Westbrook timely filed a Notice of Appeal, and

properly preserved his claims challenging the discretionary aspects of

sentencing in his Post-Sentence Motion. Westbrook also included a Pa.R.A.P.

2119(f) Statement in his brief. Appellant’s Brief at 10-11. Finally, Westbrook

has presented substantial questions for our review. Westbrook contends that

the trial court failed to state adequate reasons for deviating from the

Sentencing    Guidelines,   which   raises   a   substantial   question.    See



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Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa.Super. 2008). His

additional argument that the trial court relied on impermissible factors in

fashioning his sentence also raises a substantial question. Appellant’s Brief

at 3; Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super. 2006).

     Sentencing is within the discretion of the trial court and thus will not

be disturbed absent an abuse of discretion. Commonwealth v. Jones, 640

A.2d 914, 916 (Pa.Super. 1994). The only limitations on this discretion are

that the sentence imposed must be within the statutory limits; the record

must show that the court considered the Sentencing Guidelines; and if the

court deviates from the Sentencing Guidelines, the record must include a

statement of reasons for the departure. Commonwealth v. Warren, 84

A.3d 1092, 1097 (Pa.Super. 2014). When imposing a sentence, the court

must consider the protection of the public, the gravity of the offense as it

relates to the impact on the victim and the community, the defendant’s

rehabilitative needs, and the Sentencing Guidelines. Commonwealth v.

Feucht, 955 A.2d 377, 383 (Pa.Super. 2008).

     Westbrook contends that the trial court considered two improper

factors when it fashioned his sentence: his prior convictions, which he notes

were accounted for by his prior record score, and his prior arrests, which he

argues   the   trial   court   treated   as    if   they   were   convictions.   The

Commonwealth did not file an Appellee’s Brief in this Court.




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      Westbrook is correct that prior convictions are accounted for in the

prior record score, and a prior conviction therefore may not be used to

impose an aggravated range sentence. See              204 Pa.Code § 303.5;

Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super. 2000). But

see Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008)

(stating even where sentencing court relies on improper factor, there is no

abuse of discretion if court has significant other support for departing from

Sentencing Guidelines).

      Westbrook is incorrect, however, that the trial court’s “extended”

discussion of his prior record shows that the court considered it as an

aggravating sentencing factor. Appellant’s Brief at 13. To the contrary, the

court never stated that it was using Westbrook’s prior record as an

aggravating sentencing factor. Rather, the trial court referred to Westbrook’s

history of arrests and convictions as part of its explanation of its sentence:

assessment of Westbrook’s potential for rehabilitation and the need to

protect the community:

      You, sir, have a terrible record . . . . What strikes me here is that
      your first arrest as a 17 year old was for aggravated assault, for
      which you were adjudicated delinquent. And here you are 12
      years later and we’re back again with an aggravated assault
      charge. We simply cannot have folks walking the street who can
      visit violence on a fellow citizen in the manner that you did in
      this case.

N.T., Sentencing Hearing, 7/27/16 at 35.




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      Furthermore, although the court made reference to Westbrook’s

arrests and convictions as both a juvenile and an adult, it is clear that the

court was making a complete record of the evidence that was presented to it

for purposes of sentencing. This is supported by what the trial court stated

to Westbrook prior to the discussion of his record:

      I want you to appreciate that our judicial system requires that
      sentencing be individualized; that is that we look at Mr.
      Westbrook’s need for rehabilitation, who he is, his position in
      life. But we must also take into account society’s need for
      protection.

Id. at 34.

      The court thus did not improperly consider Westbrook’s prior record as

an aggravating factor. Moreover, even if the trial court had considered his

prior record as an aggravating factor, doing so would not have been an

abuse of discretion because his prior record was not the sole reason for his

aggravated sentence. See Sheller, 961 A.2d at 192. The trial court stated

that it considered all the requisite factors such as society’s need for

protection, Westbrook’s need for rehabilitation, and the gravity of the

offense. N.T., Sentencing Hearing, 7/27/16 at 37. The court expressly stated

that it gave due consideration to the Sentencing Guidelines and read the

pre-sentence investigator’s report as well as the mental health evaluation,

which included the mitigating factor of Westbrook’s rough upbringing. Id. at

36.




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       Westbrook also claims that the trial court conflated his prior arrests

with criminal convictions. However, the record is clear that the court

distinguished among Westbrook’s arrests, adjudications of delinquency, and

criminal convictions:

       When I review the reports ordered for assistance of sentence in
       this case, I see that you have four arrests as a juvenile and
       three adjudications of delinquency; nine arrests as an adult and
       five convictions.

Id. at. 35-36.

       The court’s review of Westbrook’s arrest, delinquency, and criminal

history was not improper. See Commonwealth v. Johnson, 481 A.2d

1212, 1214 (Pa.Super. 1984) (stating sentencing court may consider

defendant’s prior arrests which did not result in convictions, as long as court

recognizes that defendant was not convicted of the charges).

       Westbrook next contends that the trial court failed to state its reasons

for imposing his consecutive sentences. Appellant’s Brief at 14-15. Even

assuming for purposes of argument only that this claim states a substantial

question,2 this claim lacks merit.

       The trial court heard testimony from Westbrook’s mother and his

child’s mother who spoke about his character and their support for him.
____________________________________________


2 See Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012)
(en banc) (stating challenge to imposition of consecutive sentences states a
substantial question if consecutive sentences “raise[] the aggregate
sentence to, what appears upon its face to be, an excessive level in light of
the criminal conduct at issue in the case.”).



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N.T., 7/27/16 at 17-25. Additionally, the court heard from the victim in the

case, Mr. Keeys, by way of a victim impact statement that the prosecutor

read into the record. Id. at 28-33. The court also considered the pre-

sentence investigation report as well as the mental health evaluation. Id. at.

36-37.

      The court then, contrary to Westbrook’s claim on appeal, explained

how it had settled on the sentence it imposed on Westbrook. The court

explained that Westbrook’s four arrests as a juvenile and three adjudications

of delinquency, and nine arrests as an adult and five criminal convictions

showed that despite multiple prior opportunities at rehabilitation, Westbrook

had reoffended. Id. For that reason, the court concluded that the risk of

recidivism to be high, and stated, “We simply cannot have folks walking the

street who can visit violence on a fellow citizen in the manner that you did in

this case.” Id. at 35-36. The court also noted that Westbrook’s mother had

abused him and his father had abandoned him, but also pointed out that

Westbrook had now abandoned his own two children. Id. at 36. The court

then identified all of the all of the factors that it had considered in sentencing

Westbrook:

      I have taken into consideration Mr. Westbrook, all of the factors
      I’m required to, those imposed on this Court by our appellate
      courts, as well as those imposed by the legislature. I’ve given
      due consideration to the guideline computations. I have read the
      presentence investigator’s report and the mental health
      evaluation. I have considered your need for rehabilitation as well
      as society’s need for protection. And I have taken into account
      the gravity of the offense on which the jury found you guilty.

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Id. at 37.

      Westbrook’s claim that the trial court failed to state its reasons for

imposing an aggravated-range sentence is patently meritless.

      Finally, we address Westbrook’s claim that his aggregate sentence was

unreasonable. A sentence may be found to be unreasonable if the trial court

imposed it without consideration of the protection of the public, the gravity

of the offense in relation to the impact on the victim and the community,

and the rehabilitative needs of the defendant. Commonwealth v. Walls,

926 A.2d 957, 964 (Pa. 2007). A sentence may also be found to be

unreasonable after review of the factors set forth in Section 9781(d):

      (1)    The nature and circumstances of the offense and the
             history and characteristics of the defendant.

      (2)    The opportunity of the sentencing court to observe the
             defendant, including any pre-sentence investigation.

      (3)    The findings upon which the sentence was based.

      (4)    The guidelines promulgated by the commission.

Id. (citing 42 Pa.C.S. § 9781(d)).

      Here, we cannot say that Westbrook’s aggregate sentence was

unreasonable. As demonstrated above, the trial court considered and

weighed the required sentencing factors, and gave consideration to both

mitigating and aggravating circumstances before imposing sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




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