J. A30032/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
GENE DONTA CARTER,                       :         No. 472 WDA 2017
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, December 6, 2016,
                in the Court of Common Pleas of Blair County
             Criminal Division at No. CP-07-CR-0000245-2011


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED: February 16, 2018


      Gene Donta Carter appeals from the December 6, 2016 aggregate

judgment of sentence of 37 to 74 years’ imprisonment imposed after a jury

found him guilty of 16 counts of delivery of a controlled substance, two counts

of possession with intent to deliver a controlled substance (“PWID”), and one

count each of criminal conspiracy, criminal use of communication facility, and

dealing in proceeds of unlawful activity.1 Appellant was also ordered to pay

fines totaling $210,000.   After careful review, we vacate the judgment of

sentence as it relates to the fines imposed and affirm the judgment of

sentence in all other respects.




1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 903(a), 7512(a), and
5111(a)(1), respectively.
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      The relevant facts and procedural history of this case are as follows.

This case arose from an investigation by the Pennsylvania Office of the

Attorney General that revealed that appellant purchased cocaine and heroin

from Michael Serrano and later sold it in Blair County between September

2009 and April 2010. On October 27, 2011, appellant was found guilty of the

aforementioned offenses following a four-day jury trial. On January 12, 2012,

the trial court sentenced appellant to an aggregate term of 104½ to 215 years’

imprisonment, which included 16 mandatory minimum sentences for the

delivery of cocaine and heroin under 18 Pa.C.S.A. § 7508. Appellant’s jury

trial and sentencing were presided over by the late President Judge Thomas G.

Peoples. Post-sentencing and appellate proceedings in this matter were quite

protracted and need not be reiterated here.     Ultimately, on September 1,

2015, a panel of this court affirmed appellant’s convictions, but vacated his

judgment of sentence and remanded for re-sentencing in light of the United

States Supreme Court’s decision in Alleyne v. United States,         U.S.     ,

133 S.Ct. 2151 (2013). See Commonwealth v. Carter, 122 A.3d 388, 393

(Pa.Super. 2015).

      On December 6, 2016, the trial court re-sentenced appellant to an

aggregate term of 37 to 74 years’ imprisonment.2 On December 14, 2016,

appellant filed a timely post-sentence motion for modification of his sentence.




2 The Honorable Daniel J. Milliron presided over appellant’s re-sentencing
proceeding.


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On March 23, 2017, the trial court denied appellant’s post-sentence motion,

and this timely appeal followed. On March 31, 2017, the trial court ordered

appellant to file a concise statement of errors complained of on appeal, in

accordance with Pa.R.A.P. 1925(b), within 21 days.        On April 21, 2017,

appellant filed his timely Rule 1925(b) statement.     Thereafter, on June 2,

2017, the trial court filed a letter indicating that it would be relying on the

record and a formal Rule 1925(a) opinion would not be forthcoming.

      Appellant raises the following issues for our review:

            I.     WHETHER THE SENTENCING COURT ERRED IN
                   APPLYING INCORRECT OFFENSE GRAVITY
                   SCORES IN VIOLATION OF APPELLANT’S DUE
                   PROCESS RIGHTS BASED UPON THE UNPROVEN
                   WEIGHT OF DRUGS IN THE COURSE OF
                   SENTENCING HIM FOR DELIVERY/[PWID]
                   CONTROLLED SUBSTANCES AND CRIMINAL
                   CONSPIRACY[?]

            II.    WHETHER THE AGGREGATE SENTENCE OF 37
                   TO 74 YEARS[’] INCARCERATION RESULTING
                   FROM THE IMPOSITION OF CONSECUTIVE
                   SENTENCES CONSTITUTED A MANIFESTLY
                   UNJUST, UNDULY HARSH SENTENCE GIVEN
                   THE CIRCUMSTANCES OF THE CASE[?]

            III.   WHETHER THE TRIAL COURT ERRED IN FAILING
                   TO CONSIDER [APPELLANT’S] ABILITY TO PAY
                   IN DECLINING TO REDUCE THE AGGREGATE
                   FINE OF $210,000.00 WHERE [APPELLANT] IS
                   INDIGENT AND THE RECORD IS DEVOID OF
                   EVIDENCE OF ABILITY TO PAY[?]

Appellant’s brief at 6.

      Generally, our standard of review in assessing whether a trial court has

erred in fashioning a sentence is well settled.


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            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            [a]ppellant 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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citation omitted).

      Appellant’s first two claims challenge the discretionary aspects of his

sentence.   Where an appellant challenges the discretionary aspects of his

sentence, the right to appellate review is not absolute. See Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).             Rather, an appellant

challenging the discretionary aspects of his sentence must invoke this court’s

jurisdiction by satisfying the following four-part test:

            (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. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, appellant filed a timely notice of appeal and preserved his

discretionary aspects of sentencing claims in his December 14, 2016



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post-sentence motion. Appellant has also included statements in his brief that

comport with the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at

18-20, 37-42.) Accordingly, we must determine whether appellant has raised

a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted).   “A substantial question exists only when appellant advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

      Appellant first argues that the trial court abused its discretion in applying

elevated offense gravity scores (“OGS”) that were improperly based on “the

unproven weight of the drugs” in question. (Appellant’s brief at 17.) A claim

that the trial court applied an incorrect OGS raises a substantial question.

Commonwealth v. Lamonda, 52 A.3d 365 371 (Pa.Super. 2012), appeal

denied, 75 A.3d 1281 (Pa. 2013). Accordingly, we proceed to consider the

merits of this discretionary sentencing claim.

      Here, the Commonwealth presented a copious amount of testimony at

trial to establish the weight of the drugs involved in 13 of the 16 narcotics



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transactions for which appellant was ultimately convicted.      (See notes of

testimony, 10/24/11 at 40-68, 74-84, 88-109, 121-128, 135-145, 149-154,

155-167, 169-185, 188-189, 196-197; 10/25/11 at 103-104, 129-162,

171-175; and 10/26/11 at 7-15, 42-48, 111-128, 165-168, 175-176.)

Clearly, the testimony was sufficient to support the elevated OGS utilized by

the trial court in fashioning appellant’s sentence.

      Appellant, however, takes issue with the fact that the Commonwealth

did not present additional evidence at the re-sentencing hearing to establish

the weight of the drugs used to calculate his OGS on the Guideline Sentence

forms. (Appellant’s brief at 17.) Appellant concedes in his appellate brief that

the United States Supreme Court’s ruling in Alleyne3 does not require that

the weights or quantities of drugs affecting the standard range of sentence be

proven to the jury beyond a reasonable doubt. (Id. at 24, 31.) However,

appellant maintains that “the Commonwealth is not entirely obviated of

providing those facts, altogether” at sentencing, and before the weight or

quantities of the drugs in question can be used to raise the OGS, they “are

subject to proof . . . by a preponderance of the evidence.” (Id. at 31.) For

the following reasons, we disagree.




3 In Alleyne, the United States Supreme Court held that the Sixth Amendment
requires that “[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
doubt[.]” Alleyne, 133 S.Ct. at 2155 (citation omitted).


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      Appellant’s argument misconstrues the nature of the OGS and the

Sentencing Guidelines.     The OGS is but one factor in the Sentencing

Guidelines; the other factor is appellant’s prior record score.

            The Sentencing Guidelines, located at 204 Pa.Code
            § 303 et seq., recommend ranges of minimum
            sentences based on the type of offense, the
            defendant’s prior criminal history, and a variety of
            aggravating and mitigating factors. The standard
            recommended minimum sentence is determined by
            the intersection of the defendant’s prior record score
            and the offense gravity score on the Basic Sentencing
            Matrix.

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007), citing 204

Pa.Code § 303.16; see also 204 Pa.Code § 303.9(a)(1) (stating, “Guideline

sentence recommendations are based on the Offense Gravity Score and Prior

Record Score”).

      It is well settled that trial courts retain broad discretion in sentencing

matters and that the Sentencing Guidelines “are merely one factor among

many that the court must consider in imposing a sentence[.]” Yuhasz, 923

A.2d at 1118 (citation omitted).       The Sentencing Guidelines are to be

considered “advisory in nature[,]” see Commonwealth v. Kitchen, 162 A.3d

1140, 1147 (Pa.Super. 2017) (citation omitted), and “may help frame the

exercise of judgment by the court in imposing a sentence.” Commonwealth

v. Walls, 926 A.2d 957, 961 (Pa. 2007).

            [T]he guidelines have no binding effect, create no
            presumption in sentencing, and do not predominate
            over other sentencing factors—they are advisory
            guideposts that are valuable, may provide an


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            essential starting point, and that must be respected
            and considered; they recommend, however, rather
            than require a particular sentence.

Id. at 964-965 (citations omitted).

      Instantly, the record reveals that the trial court weighed multiple factors

in addition to the OGS used to calculate his sentence under the Sentencing

Guidelines, including “the protection of the public, the rehabilitative needs of

the defendant, and the gravity of the particular offense as it relates to the

impact on the life of the victim and the community[.]” See Kitchen, 162

A.3d at 1147 (citation omitted). In its December 6, 2016 re-sentencing order,

the trial court stated that it “developed its own independent and current

consideration of the appropriate sentence” and carefully followed the

directions set forth by this court on remand in appellant’s co-defendant’s case,

Commonwealth v. Serrano, 150 A.3d 470 (Pa.Super. 2016).4 (See trial

court order, 12/6/16 at 1-2.)

      Specifically, the trial court reasoned as follows:

            [The sentencing court] paid attention to the
            sentencing statutes, particularly Section 9721 and
            considered the protection of the public, the
            seriousness of the offense as it related to the impact
            on the community and the rehabilitative needs of
            [appellant]. The Court finds that [appellant] was a
            prime and, in fact, the principal person of culpability
            in the drug distribution scheme that involved

4 The Serrano court held that, “[w]hen a sentence is vacated and the case is
remanded to the sentencing court for resentencing, the sentencing judge
should start afresh. Reimposing a judgment of sentence should not be a
mechanical exercise.” Commonwealth v. Serrano, 150 A.3d 470, 473
(Pa.Super. 2016) (citations and internal quotation marks omitted).


                                      -8-
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              Mr. Serrano. The Court believes that a consideration
              of the sentences of co-defendants is appropriate, but
              for the record[, appellant] is at the top of the pyramid
              of responsibility.     The Court does believe that
              [appellant] has some potential for rehabilitation but
              balances that against the substantial influx of
              controlled substances[,] which he was responsible for
              bringing into the Blair County community. This Court
              rejects his counsel’s argument of sentencing
              manipulation by law enforcement or that there is a
              legal fiction involved in the law enforcement’s
              development of the case.

Trial court order, 12/6/16 at 2.

      The record further reflects that the trial court was in possession of a

pre-sentence investigation (“PSI”) report and indicated that the trial court

reviewed it. (Pre-sentence investigation report, 12/6/16; certified record at

# 110.) Where the trial court has the benefit of a PSI report, as is the case

here, “we shall . . . 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.

Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal

denied, 95 A.3d 275 (Pa. 2014). Accordingly, appellant’s first challenge to

the discretionary aspects of his sentence must fail.

      Appellant next argues that the trial court abused its discretion in

imposing consecutive sentences for a number of his drug-trafficking offenses

that resulted in “a manifestly unjust, unduly harsh sentence given the

circumstances of this case.” (Appellant’s brief at 36.)




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      The “[l]ong standing precedent of this [c]ourt recognizes that

42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.” Commonwealth v. Marts,

889 A.2d 608, 612 (Pa.Super. 2005). Generally, the imposition of consecutive

sentences does not raise a substantial question.       See Commonwealth v.

Pass, 914 A.2d 442, 446 (Pa.Super. 2006) (stating that a challenge to the

trial court’s discretion to impose a consecutive sentence does not raise a

substantial question). Such a claim may raise a substantial question “in only

the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.

2013), appeal denied, 91 A.3d 161 (Pa. 2014) (citation omitted). This case

simply does not present “extreme circumstances,” and appellant’s sentence is

not unduly harsh considering the extensive criminal conduct that occurred in

the case, the nature of the crimes, and the length of imprisonment.

Accordingly, the trial court’s decision to impose consecutive, rather than

concurrent, sentences does not present a substantial question for our review.

      In his final issue, appellant contends that the trial court erred in ordering

him to pay $210,000 in fines in connection with his sentence of confinement

“where [he] is indigent and the record is devoid of evidence of ability to pay.”

(Appellant’s brief at 52.)



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      This court has recognized that a challenge to fines imposed in

conjunction with a sentence of imprisonment, based upon a defendant’s ability

to pay, is a non-waivable challenge to the legality of the sentence.         See

Commonwealth v. Boyd, 73 A.3d 1269, 1270 (Pa.Super. 2013). “The

determination as to whether the trial court imposed an illegal sentence is a

question of law; our standard of review in cases dealing with questions of law

is plenary.”    Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super.

2012) (citation omitted).

      The imposition of fines is governed by 42 Pa.C.S.A. § 9726, which

provides, in relevant part, as follows:

               (b)   Fine as additional sentence.--The court may
                     sentence the defendant to pay a fine in addition
                     to another sentence, either involving total or
                     partial confinement or probation, when:

                     (1)   the defendant has derived a
                           pecuniary gain from the crime; or

                     (2)   the court is of the opinion that a fine
                           is specially adapted to deterrence of
                           the crime involved or to the
                           correction of the defendant.

Id. at § 9726(b).      Subsection (c), in turn, sets forth an exception to this

general rule and states that, “[t]he court shall not sentence a defendant to

pay a fine unless it appears of record that: (1) the defendant is or will be able

to pay the fine; and (2) the fine will not prevent the defendant from making

restitution or reparation to the victim of the crime.”           Id. at § 9726(c)

(emphasis added).


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      Instantly, the Commonwealth concedes that the part of the judgment of

sentence that imposed $210,000 in fines should be vacated because the

record is devoid of any evidence that the trial court inquired into appellant’s

ability to pay. (See Commonwealth’s brief at 20-21.) Upon review of the

December 6, 2016 re-sentencing hearing transcript, we agree. Accordingly,

we vacate said portion of the trial court’s December 6, 2016 judgment of

sentence imposing the fines in question.

      Judgment of sentence affirmed in part, vacated in part. Case remanded

for a determination of fines. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2018




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