J-A33040-16

                                  2017 PA Super 146

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHRISTOPHER LUKETIC                        :
                                               :
                      Appellant                :       No. 789 WDA 2016

           Appeal from the Judgment of Sentence dated June 1, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000333-2016

BEFORE:        LAZARUS, SOLANO, and STRASSBURGER,* JJ.

OPINION BY SOLANO, J.:                                     FILED MAY 16, 2017

        Appellant, Christopher Luketic, appeals from his judgment of sentence

of six to twelve months’ incarceration. After careful review, we vacate the

judgment of sentence and remand for resentencing.

        On September 22, 2015, Appellant and his friend Nicole Stevens were

arrested for purchasing heroin from a drug dealer named Lanel Buckner. The

Commonwealth described the transaction and arrest as follows:

        [Police detectives] were conducting surveillance in a high-crime,
        high-drug trafficking area of the City of Pittsburgh, when they
        observed the [co-]defendant, Lanel Buckner, texting and
        continuously looking down the street.

        They then observed a vehicle driven by another defendant, Chris
        Luketic, pull into oncoming traffic and stop directly in front of Mr.
        Buckner.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A33040-16


       They also were able to later identify the front seat passenger of
       Mr. Luketic's vehicle as the third co-defendant, Nicole Stevens.

       At that time, detectives were able to observe a transaction
       where they observed Mr. Buckner hand Mr. Luketic suspected
       heroin in exchange for United States currency.

       At that point, the detectives initiated a traffic stop on the vehicle
       in which Mr. Luketic and Miss Stevens were operating.

       At that time, Miss Stevens did hand the detectives eight stamp
       bags of suspected heroin, and pointed out several more on the
       floor of the vehicle. They also observed a loaded syringe on the
       floor of the rear of their vehicle.

N.T., 6/1/16, at 18-19.

       On June 1, 2016, Appellant entered an open plea of guilty to

possession of a controlled substance.1 Buckner also pleaded guilty, and he

was sentenced immediately prior to Appellant to three to six years’




____________________________________________


1
  35 P.S. § 780-113(a)(16). “In an open plea agreement, there is an
agreement as to the charges to be brought, but no agreement at all to
restrict the prosecution’s right to seek the maximum sentences applicable to
those charges. At the other end of the negotiated plea agreement
continuum, a plea agreement may specify not only the charges to be
brought, but also the specific penalties to be imposed.” Commonwealth v.
Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994) (citation omitted), appeal
denied, 655 A.2d 983 (Pa.), cert. denied, 516 U.S. 818 (1995). Here, in
exchange for Appellant’s guilty plea, the Commonwealth withdrew two
charges of possession of a controlled substance with intent to deliver, 35
P.S. § 780-113(a)(30). See N.T. at 10-11. According to Appellant, his
involvement in the crime was limited to driving his friend to buy heroin from
Buckner. Id. at 18-20, 30.




                                           -2-
J-A33040-16


incarceration in a state correctional institution. N.T. at 21.2 While sentencing

Buckner, the trial judge stated

              I’m giving you three to six years in the State Correctional
       Institution. You’ll be on probation for five years after you get
       through with that. And zero tolerance for drugs. Maybe
       marijuana will be legalized by then.

             But I don’t know how many more opportunities I can give
       you. You are not a dumb kid. You have just chosen you are
       going to sell dope to people. And that’s the consequence. You
       have to deal with the consequences of having a blatant disregard
       for everyone else’s life. You want to sell dope. You have dope
       fiends like him[] ([i]ndicating [Appellant])[.] He is going
       to jail, too. He is not walking out of here either.

N.T. at 21-22 (emphasis added).

       At the conclusion of Buckner’s sentencing hearing, the court ordered

that Appellant’s urine be tested. While Appellant was absent from the

courtroom, the court had the following exchange with Appellant’s defense

counsel:

       [APPELLANT’S COUNSEL:] . . . I have concerns with my client
       being sentenced before the Court, given the Court’s statement
       on the record and indicating that the Court was already
       predisposed to enter a jail sentence of some sort before I had
       the opportunity to elicit testimony --

       THE COURT: He is sitting there sweating like a pig.[3] I believe
       he is going to have hot urine.

____________________________________________


2
 Buckner, who sold the heroin recovered from Appellant’s vehicle, had
multiple prior convictions for drug offenses. N.T. at 6; 18-20.
3
  Although the court did not use the past tense for this remark, it appears
from the transcript that Appellant had either left the courtroom or was in the
(Footnote Continued Next Page)


                                           -3-
J-A33040-16



      [APPELLANT’S COUNSEL:] I’m objecting to the Court imposing
      sentence if the Court was willing to enter a jail sentence without
      me eliciting any mitigating factors, because his guidelines in the
      standard range are either RS [restorative sanctions] to 1 and RS
      to 9 or an RS – [¶] The District Attorney and I are on two
      different pages as to what his prior record score is.

      THE COURT: Why don’t you wait until your client comes back. I
      don’t want to address anything you are saying without him being
      here. I’ll give you an opportunity to address all of that.

N.T. at 26-27.

      Upon Appellant’s return, his sentencing proceeding began. The court

began by inquiring about Appellant’s urine test. Although the test showed

that Appellant did have opiates in his system, the court determined that

Appellant had a prescription for them. N.T. at 28.4

      Defense counsel then renewed his objection to Appellant being

sentenced by the court, in the following exchange:

      [APPELLANT’S COUNSEL:] Briefly, Your Honor -- as the Court
      instructed, we were waiting for [Appellant] to come back [from
      his urine test]. I want to impose an objection on the record since
      the Court indicated in this co-defendant case that the Court was
      inclined to send [Appellant] to jail.


                       _______________________
(Footnote Continued)

process of leaving the courtroom for his urine test when this colloquy took
place.
4
  The court stated “You have hydrocodone that you got on May the 30th. All
right. So you have an excuse for having opiates in your system. Very well.”
N.T. at 28. Later, the court opined that Appellant should have made more
progress towards his recovery from addiction, and should no longer be using
prescription opiates. Id. at 33-34.



                                            -4-
J-A33040-16


       THE COURT: I am going to send him to jail. Let’s not have
       any equivocation. He is going to jail, because he and the
       guy who went to jail, they are both opposite sides of the
       same coin. That’s why he is going to jail, because he
       creates the guy that is with him. But go ahead.

       [APPELLANT’S COUNSEL:] If I can make a record on behalf of
       my client. The Court has already prejudged that matter before I
       got to even elicit any testimony out of my client that would bear
       upon any mitigating factors. [¶] My client, based upon a prior
       record score of one is within RS to 6 range. He is within a
       probationary range.[5] [¶] Our sentencing code is quite clear that
       before this Court imposes judgment of any kind, they need to
       pay attention in these matters.

       THE COURT: I’m all ears. I’m all ears. Tell me something
       mitigating.

       [APPELLANT’S COUNSEL:] I have concerns that this Court
       doesn’t care what is mitigating, based upon that determined --
       already expressed --

       THE COURT: Tell me what is mitigating. We don’t have to have
       any guesswork. Tell me what is mitigating. Give me the
       mitigating facts.

N.T. at 28-29 (emphases added).




____________________________________________


5
  Counsel thus argued that Appellant’s prior record score was 1, and that the
standard sentencing guidelines called for a sentence of restorative sanctions
(“RS”) (e.g., probation) at the low end, and a minimum of six months’
incarceration at the high end. See N.T. at 29. Although defense counsel had
reported that there was a dispute with the Commonwealth regarding
Appellant’s prior record score, the Commonwealth did not express
disagreement with defense counsel’s discussion of the guidelines. We note
that at this point, the court had already stated, “I am going to send him to
jail.” See id.



                                           -5-
J-A33040-16


       Appellant’s counsel then presented a case for a mitigated sentence

based on the following factors: Appellant’s acceptance of responsibility, 6 his

drug addiction, the fact he is not a drug dealer, his attempts at recovery, his

employment status, and his relationship with his three-year-old daughter.

N.T. at 29-36. Neither the court nor defense counsel made any reference

during this discussion (or at any other time) to any pre-sentence

investigation report (“PSI”) regarding Appellant, and there is no indication

that the court ordered one, even though Appellant, who had a prior

conviction for possession of a controlled substance, could have received a

sentence in excess of one year of incarceration for his misdemeanor.7 There

is no PSI in the record, and the record does not indicate whether either party

waived ordering of a PSI.

       During defense counsel’s presentation regarding mitigating factors,

after it was established that Appellant is 28 years old and has an opiate

addiction, the court engaged with Appellant by asking him, among other

____________________________________________


6
  In addition to pleading guilty, Appellant waived his right against self-
incrimination and cooperated with the police in admitting his involvement in
the drug transaction. N.T. at 29-30.
7
  See 35 P.S. § 780-113(b) (subjecting a violator of subsection (a)(16) to a
sentence of incarceration not exceeding three years, where the person has
previously been convicted under the same section); Pa.R.Crim.P.
702(A)(2)(a) (mandating that if a defendant could be sentenced to more
than one year of incarceration, the sentencing judge must state on the
record the reasons for not utilizing a PSI). Appellant has a prior conviction
for possession of a controlled substance. N.T. at 20.



                                           -6-
J-A33040-16


things, what steps he had taken to pursue recovery from his addiction and

what evidence he could provide of those steps. N.T. at 32-35.8 At the end of

this exchange, the court stated:

____________________________________________


8
    The following colloquy occurred:

        [APPELLANT’S COUNSEL:] Mr. Luketic, are you currently taking
        any steps to address this drug problem you have?
        [APPELLANT]: Yes, sir.

        [APPELLANT’S COUNSEL:] Tell the Court what it is.
        [APPELLANT]: Your Honor, I have an appointment tomorrow to
        see a therapist and a doctor.
        ...

        THE COURT: Show me what you have done from the time that
        you were caught with this heroin, up until this time of
        sentencing. Show me what you have done to get help.
        [APPELLANT]: I went to the Suboxone doctor.

        THE COURT: Show me what you have done. Give me some
        evidence of any intervention you got from the date of arrest until
        the date of sentencing. Show me what you got.
        ...
        [APPELLANT]: . . . I have my insurance that I’m approved for
        Suboxone to go to the doctor.
        ...

        THE COURT: Let’s put this on the record: United Health
        Community Service Plan has received your request for prior
        authorization of Bupron, Naloxone, Sub 8, 2 milligrams. [¶] It
        was approved on April the 2nd, and today is June the 1st, and
        you never got it; right.
        [APPELLANT]: No, sir. I did do it.

        THE COURT: That’s all. I want to make sure we are clear. You
        were approved to get this drug to block opiate use two months
        ago, and today, the day of sentencing, you are still here with
        some scripts for opiates. I want to make sure we are clear.
(Footnote Continued Next Page)


                                           -7-
J-A33040-16


      We are here imposing sentencing for cases in which you pled
      guilty to, because we have a heroin epidemic in this region. We
      have people who sell dope. We have people who use dope. We
      have people who drive people to get dope, and they disseminate
      it throughout the county. I don’t believe they are independent. I
      believe they are all a part of the same animal. Everyone is going
      to take some share of fat in the game, including you.

Id. at 35-36. When asked what else he would like to tell the court, Appellant

stated, “I plan on attending treatment whenever I leave here,” to which the

court responded, “When you leave. We are going to get you some help.” Id.

at 36. Appellant’s counsel requested a sentence of probation, house arrest,

or work release, and for Appellant to go to treatment. Id. at 37. Defense

                       _______________________
(Footnote Continued)

      ...

      [APPELLANT’S COUNSEL:] Have you dealt with a doctor or been
      in any type of treatment prior to today in dealing with your
      heroin addiction?
      [APPELLANT]: Yes, sir.

      [APPELLANT’S COUNSEL:] Tell the judge what that is.
      [APPELLANT]: I have been to the Suboxone clinic and I’m in the
      process of getting switched over to another doctor, which I’ll be
      at tomorrow, with another therapist and psychiatrist.
      ...

      THE COURT: Do you have any record of NA meetings you go to?
      [APPELLANT]: No. I can bring slips in.

      THE COURT: Today is the day, buddy. Today is the day for us to
      do everything we are going to do. I want all of the facts so I can
      make an intelligent decision.

N.T. at 32-35. “NA” is not identified in the record. We assume the
abbreviation is a reference to Narcotics Anonymous, an organization that
conducts meetings for those seeking help for narcotics addiction or abuse.



                                            -8-
J-A33040-16


counsel closed by saying, “And I would renew my objection to the Court

imposing     sentence,   based   upon    a    jail   sentence,   and   having   that

predetermined before I even had the opportunity to elicit that information.”

Id.

        The court then sentenced Appellant to serve six to twelve months’

incarceration in county prison, and a year of probation. N.T. at 37. The court

stated, “Hopefully you’ll get some intervention while you are there.” Id. The

court noted that it was Appellant’s second conviction for this offense, and

stated to Appellant, “You are as guilty as the guy who was with you. You

conspired to distribute drugs, to sell drugs, to consume drugs. He is going to

the State Correctional Institution, and you are going to the Allegheny County

Jail.” Id.

        Appellant filed no post-sentence motion following his sentencing, but

filed a notice of appeal on June 2, 2016. Appellant’s sentence was stayed

pending the outcome of this appeal. See Order, 6/9/16.

        In a Rule 1925(b) Statement, Appellant argued that the court’s

predisposition to sentence Appellant to jail meant that the court should have

recused from participating in the sentencing proceeding and that the

sentence was invalid because it was not individualized. In response, the trial

court issued an opinion pursuant to Rule 1925(a) of the Rules of Appellate

Procedure. The court began the opinion by stating its perspective on the

case:


                                        -9-
J-A33040-16


            Mr. Luketic is a drug addict. He buys heroin and then
     consumes this poison. But, the poison is not self-centered. His
     purchase of this product allows others — like his co-defendant —
     to sell this modern day plague. Both the buyer and the seller
     deserve punishment. Luketic feels his 6-12 months in the county
     jail followed by a year’s probation is too harsh. So [he] has
     appealed from the Court’s June 1, 2016, sentence.

           Luketic and a female friend drive to an area of the City of
     Pittsburgh known for its criminal activity. Lanel Buckner is open
     for business. He is seen texting and constantly looking around. A
     car pulls up. It stops in front of Buckner. Luketic is driving. Ms.
     Nicole Stevens is riding shotgun. Buckner hands Luketic what
     police believe to be heroin. Money goes to Buckner. Luketic
     drives away. He doesn’t get far. Police converge on the car. They
     recover 8 stamp bags of heroin from Ms. Stevens. A “loaded
     syringe” sits on the floor of the back seat. . . .

            There was nothing special about the sentencing hearing.
     . . . The Sentencing Guidelines suggested a standard range
     sentence of restorative sanctions to 6 months in jail. The Court’s
     sentence began at the high end of that range.

Tr. Ct. Op., at 1-2 (citations to record omitted). After finding Appellant’s

recusal issue waived, the court continued:

     . . . [Appellant]’s real complaint is the manner in which this
     Court conducted the sentencing hearing. [Appellant] does not
     like the fact that the Court came to that portion of the
     proceeding with a preconceived notion as to what is fair and just
     and then articulated its thinking. The Court then solicited
     [Appellant], on more than one occasion to advance mitigating
     factors. [Appellant] identified the following mitigating factors: he
     took responsibility for his action; he did so very early in the
     process; matter does not involve a significant amount of drugs;
     he had not used the recently purchased drugs; he was currently
     employed; he has been addicted for 2 years; he is only a user;
     he took some very preliminary steps to address his addiction; he
     got a prescription to help him stop using; he is the father of a 3
     year old; he goes to NA meetings; and he plans to attend
     treatment.




                                    - 10 -
J-A33040-16


            [Appellant]’s efforts at pushing this Court from its position
      of what it felt was a fair result simply did not work. The Court
      does not see anything wrong with the process used here. Based
      upon the information it had, at a finite point on a timeline, the
      Court expressed its view with full recognition that it had not yet
      heard from the defendant or his counsel. After listening,
      questioning and engaging in a critique of that information which
      was presented, this Court arrived at the same point it started at
      — [Appellant] is going to jail.

             Let us pause for a moment and consider the following. The
      Court comes on the bench and announces to both counsel and
      the defendant — before hearing anything else — that probation
      is the appropriate sentence here and then adds, does anyone
      want to convince me otherwise? How is that process any
      different than that employed with [Appellant]? This Court sees
      none.

            [Appellant]’s    second     argument      trumpets     the
      aforementioned mitigators and claims the Court abused its
      discretion in sentencing him. The flashpoint of controversy here
      is the persuasive value of the mitigating facts [Appellant]
      presented. Plain and simple — they were not persuasive. A few
      exchanges will make the point. [Appellant] said he has attended
      NA meetings. He failed to provide 3rd party proof. [Appellant]
      said he got a prescription to suppress his opiate desire 60 days
      before sentencing. Yet, he came to Court with opiates in his
      system. [Appellant] said he has taken steps to get treatment.
      When pressed for 3rd party confirmation, he had nothing. The
      Court imposed a fair, just and reasonable sentence given the
      circumstances of this case.

Id. at 3-4 (citations to record omitted).

      Appellant presents the following issues for our review:

      I. A court cannot impose a just sentence unless it has
      information about both the crime and the defendant. Where the
      lower court determined that Appellant was “going to jail” before
      hearing any evidence specific to him, and Appellant in turn
      objected to the lower court serving as his sentencer as a result
      of this predetermination, was the lower court wrong not to
      recuse itself or state why its impartiality cannot be reasonably
      questioned?

                                     - 11 -
J-A33040-16



      II. Appellant’s sentencing guidelines recommended a sentence
      from probation to a minimum jail term of six months. Where the
      lower court prematurely announced its intention to jail Appellant
      before it heard any evidence from him, then, in fact, imposed a
      6 to 12 month jail sentence after hearing Appellant’s mitigating
      evidence, did the lower court manifestly abuse its discretion
      when it imposed sentence contrary to the fundamental norm
      that sentencing be individualized?

Appellant’s Brief at 4.

                                   Recusal

      In his first issue, Appellant claims that the sentencing judge should

have either recused himself or have stated on the record why his impartiality

could not be questioned. Appellant’s Brief at 16-20. We have stated our

standard of review as follows:

             This Court presumes judges of this Commonwealth are
      “honorable, fair and competent,” and, when confronted with a
      recusal demand, have the ability to determine whether they can
      rule impartially and without prejudice. The party who asserts a
      trial judge must be disqualified bears the burden of producing
      evidence establishing bias, prejudice, or unfairness necessitating
      recusal, and the decision by a judge against whom a plea of
      prejudice is made will not be disturbed except for an abuse of
      discretion.

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (some quotation

marks and citations omitted); accord Commonwealth v. Timchak, 69

A.3d 765, 774 (Pa. Super. 2013).

      The trial judge, in his Pa.R.A.P. 1925(a) opinion, concluded that

Appellant’s claim was waived because he was not explicitly asked to recuse

himself during the sentencing proceeding. See Trial Ct. Op., 7/19/16, at 2.



                                    - 12 -
J-A33040-16


The     Commonwealth            extensively    reiterates        that     argument.      See

Commonwealth’s Brief at 8-23. Appellant counters that his request for

recusal was apparent from the record, based on the multiple objections he

made against the court imposing sentence. Appellant’s Brief at 19-20.

Appellant argues that he “has found no authority in this Commonwealth

requiring counsel to use the magic word ‘recuse’ to petition for a court’s

removal.” Id. at 20 n.48 (citing State v. Favors, 43 So.3d 253, 261 (La. Ct.

App. 2010), writ denied, 57 So.3d 909 (La. 2011)).9

       We agree with the trial court that Appellant waived his recusal claim.

Although a party has a right to request recusal where a judge’s impartiality

may reasonably be questioned, Goodheart v. Casey, 565 A.2d 757, 762

(Pa.   1989),     “[i]t    is   well-settled   that   a   party     seeking    recusal    or

disqualification must raise the objection at the earliest possible moment, or

that   party     will     suffer   the   consequence        of    being     time   barred,”

Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super.) (quotation

marks and citation omitted), appeal denied, 795 A.2d 975 (Pa. 2000).

       Moreover, a recusal request must be specific, because where no clear

recusal motion is made, the trial judge may fail to engage in the



____________________________________________


9
  We may consider the decisions of other states’ courts, but they are not
binding on us. See Commonwealth v. Santarelli, 483 A.2d 895, 900 (Pa.
Super. 1984), cert. denied, 476 U.S. 1116 (1986).



                                           - 13 -
J-A33040-16


independent analysis and self-reflection necessary to make a cognizable

ruling on the motion. As our Supreme Court has explained:

           If a party questions the impartiality of a judge, the proper
     recourse is a motion for recusal, requesting that the judge make
     an independent, self-analysis of the ability to be impartial. If
     content with that inner examination, the judge must then decide
     whether his or her continued involvement in the case creates an
     appearance of impropriety and/or would tend to undermine
     public confidence in the judiciary. This assessment is a personal
     and unreviewable decision that only the jurist can make. . . .

Druce, 848 A.2d at 108 (quotation marks and citations omitted).

     Under our law, a strong tradition has been established which
     recognizes that each judge has the primary responsibility for
     determining the validity of a challenge to his or her participation
     in a given matter.

           This view rests upon the sound premise that the jurist
     requested to recuse himself is the most capable to determine
     those factors hidden in the recesses of the mind and soul which
     would bear upon his or her capability to maintain the impartiality
     that each matter must receive. That exercise of conscience was
     intended to be aided by [Code of Judicial Conduct] Canon 3(C)[,]
     which provides some of the factors bearing upon such an
     evaluation.

Goodheart, 565 A.2d at 763 (citations omitted).

     Because of the import of this analysis a judge must perform following

a recusal motion, the motion must be clearly made on the record, and a

judge is not obligated to infer that there is a recusal request from other

complaints or objections made on the record. See Commonwealth v.

Hudson, 820 A.2d 720, 727 (Pa. Super. 2003) (stating, “[the defendant]

did not direct a motion for recusal to the trial judge following the court’s

rejection of his plea agreement, and we find no merit to his argument that a


                                   - 14 -
J-A33040-16


recusal motion can somehow be inferred from his request to present the

plea to a different judge”), appeal denied, 844 A.2d 551 (Pa. 2004); see

also Commonwealth v. Williams, 69 A.3d 735, 749-50 (Pa. Super. 2013)

(holding recusal issue waived because, although judge displayed prejudice

warranting recusal at sentencing hearing, the sentencing hearing was held

several months after the judge had disposed of an earlier recusal motion

made at a violation of probation hearing, at which no prejudice was

displayed), appeal denied, 83 A.3d 415 (Pa. 2014).

      Here, Appellant repeatedly objected to the court’s imposition of

sentence on the ground that the court had pre-determined his sentence. But

he made no motion for the judge’s recusal, and the judge was not obligated

to infer one. While Appellant’s complaints could ring of judicial impartiality,

they could also aptly be construed as a more general challenge to the court’s

application of the norms and rules regarding sentencing procedures, which is

Appellant’s next issue. Due to Appellant’s failure to move specifically for

recusal, the judge was not put on notice that he needed to engage in the

reflection required by such a motion and to make a separate and definitive

ruling about whether he should continue to preside in the case. Appellant’s

first issue therefore is waived.

                          Individualized Sentence

      As his second issue, Appellant claims that the court erred in not

imposing an individualized sentence following his open guilty plea, and that


                                    - 15 -
J-A33040-16


it instead decided that Appellant would receive a sentence of incarceration

before the sentencing proceeding began.

     When a defendant enters a guilty plea, the defendant waives the right

to “challenge on appeal all non-jurisdictional defects except the legality of

[the] sentence and the validity of [the] plea.” Commonwealth v.

Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008) (citation omitted).

However, the defendant retains the right to challenge the discretionary

aspects of his sentence:

     A defendant, who enters a guilty plea which does not
     involve a plea bargain designating the sentence to be
     imposed, cannot be said to have granted the sentencing
     court carte blanche to impose a discriminatory, vindictive
     or excessive sentence so long as the legal limits are not
     exceeded. Obviously, the entry of a guilty plea does not
     preclude a petition for allowance of appeal of discretionary
     aspects of [a] sentence subsequently imposed.

Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994)

(emphasis in original; citation omitted), appeal denied, 655 A.2d 983 (Pa.),

cert. denied, 516 U.S. 818 (1995); accord Commonwealth v. Coles, 530

A.2d 453, 457 (Pa. Super. 1987) (noting, “where a plea agreement is an

open one as opposed to one for a negotiated sentence, unquestionably,

after sentencing the defendant can properly request reconsideration as the

court alone decided the sentence and no bargain for a stated term, agreed

upon by the parties, is involved” (citation omitted)), appeal denied, 559

A.2d 34 (Pa. 1989). Therefore, despite his open plea of guilty, Appellant may




                                   - 16 -
J-A33040-16


challenge the discretionary aspects of his sentence. See Dalberto, 648 A.2d

at 20.

         “[A] challenge to the discretionary aspects of a sentence is not

appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042

(Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015); see

Sentencing Code, 42 Pa.C.S. § 9781(b) (providing that this Court has

discretion to allow an appeal of the discretionary aspects of a sentence only

if the appeal presents a substantial question as to the sentence’s propriety).

Therefore, before we may exercise jurisdiction to reach the merits of

Appellant’s claim, we must verify that Appellant’s appeal is properly before

this Court — that is, that his appeal was timely filed and that the issues he

seeks to raise were properly preserved. Colon, 102 A.3d at 1042-43. If so,

we must then determine “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” pursuant to Appellate Rule 2119(f),

and “whether th[at] concise statement raises a substantial question that the

sentence is appropriate under the sentencing code.” Id.10 Only if the appeal

____________________________________________


10
   These requirements are both procedural and jurisdictional. Section
9781(b) of the Sentencing Code provides that the discretionary aspects of a
sentence may be challenged only by a petition for allowance of an appeal. To
“maintain[] consistency between practice under this section of the
Sentencing Code and typical appellate practice in Superior Court, which does
not ordinarily have discretion as to the exercise of its jurisdiction,” the
Supreme Court, in effect, provided for the petition for allowance of appeal to
(Footnote Continued Next Page)


                                          - 17 -
J-A33040-16


satisfies these requirements may we proceed to decide the substantive

merits of Appellant’s claim. Id. at 1043.

      By filing a timely appeal and making several objections to the conduct

of the sentencing proceeding during that proceeding, Appellant fulfilled the

first two of these requirements.11 In addition, Appellant’s brief includes a

Rule 2119(f) statement setting forth the reasons we should allow an appeal

regarding the discretionary aspects of his sentence. We therefore turn to the
                       _______________________
(Footnote Continued)

be accomplished by a two-part process: the filing of a notice of appeal, and
the inclusion of a Rule 2119(f) statement at the time of briefing. See
Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (1987). The Rule 2119(f)
statement enables this Court to make a preliminary determination whether
the appellant raises a substantial sentencing question that merits review,
before actually addressing the merits of that question. See id. at 19-20.
11
    Appellant properly preserved his sentencing issue even though he failed to
file a post-sentence motion. The filing of a post-sentence motion is
“optional,” Pa.R.Crim.P. 720(B), and “[i]ssues raised before or during trial
shall be deemed preserved for appeal whether or not the defendant elects to
file a post-sentence motion on those issues.” Id. 720(B)(1)(c). This rule
applies to the preservation of issues related to the discretionary aspects of a
sentence. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super.)
(“[i]ssues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. . . . Absent such efforts, an objection
to a discretionary aspect of a sentence is waived” (emphasis added;
quotation marks and citation omitted)), appeal denied, 860 A.2d 122 (Pa.
2004); see also Pa.R.Crim.P. 720, cmt. (“Issues properly preserved at the
sentencing proceeding need not, but may be raised again in a motion to
modify sentence in order to preserve them for appeal. In deciding whether
to move to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for appellate review
of the issues, or the issues may be waived”). Here, the persistent and
conspicuous objections made by Appellant’s counsel during the sentencing
proceeding placed Appellant’s second issue before the trial court in the first
instance, and preserved that issue for appellate review.



                                           - 18 -
J-A33040-16


final requirement: whether the question raised by Appellant is a substantial

question meriting our discretionary review.

      “A defendant presents a substantial question when he sets forth 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)

(quotation marks and citation omitted), appeal denied, 91 A.3d 161 (Pa.

2014). One of the fundamental norms in the sentencing process is that a

defendant’s sentence be individualized. As our Supreme Court explained in

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988):

      The philosophy of indeterminate or individualized sentencing was
      explicitly recognized by the Pennsylvania Legislature early in this
      century. Courts are not permitted to mete out punishment based
      on the mere fact of the crime. On the contrary, sentencing must
      result both from a consideration of the nature and circumstances
      of the crime as well as the character of the defendant.

546 A.2d at 13 (footnote omitted). Thus, “a sentencing court abuses its

discretion when it considers the criminal act, but not the criminal himself.”

Commonwealth v. Wright, 600 A.2d 1289, 1291 (Pa. Super. 1991)

(quotation marks and citation omitted). The Sentencing Code prescribes

individualized sentencing by requiring the sentencing court to consider the

protection of the public, the gravity of the offense in relation to its impact on

the victim and the community, and the rehabilitative needs of the defendant,

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citing 42

Pa.C.S. § 9721), and prohibiting a sentence of total confinement without

                                     - 19 -
J-A33040-16


consideration of “the nature and circumstances of the crime[,] and the

history, character, and condition of the defendant,” 42 Pa.C.S. § 9725.

      In Devers, the Supreme Court set forth the following regarding the

two-part duty of sentencing judges:

      The first responsibility is a fact-finding responsibility: the judge
      must be sure he had enough information. The second
      responsibility is an application-and-explanation responsibility:
      the judge must apply to the information he has gathered the
      guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701
      et seq., and explain how the sentence he has selected is
      responsive to, and reflects the standards embodied in, those
      guidelines. If the judge fails to fulfill these responsibilities, we
      must vacate the sentence and remand for resentencing.

Devers, 546 A.2d at 16 (citation omitted). When a court disregards its first

function by failing to investigate and consider the character of the

defendant, and fashioning a sentence based solely on the nature of the

crime, the court fails “to exercise its broad discretion in accordance with the

applicable statutory requirements.” Commonwealth v. Martin, 351 A.2d

650, 657–58 (Pa. 1976) (footnote omitted).

      For example, in Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa.

Super.), appeal denied, 759 A.2d 920 (Pa. 2000), the sentencing court

conducted only a seven-question colloquy of the defendant prior to imposing

sentence, and it ordered no PSI report. 748 A.2d at 729. We vacated the

sentence, because —

      the court imposed sentence without considering sufficient and
      accurate information about the defendant . . . .

                                  *     *      *

                                      - 20 -
J-A33040-16



       [A] sentencing judge must either order a PSI report or conduct
       sufficient presentence inquiry such that, at a minimum, the court
       is apprised of the particular circumstances of the offense, not
       limited to those of record, as well as the defendant's personal
       history and background.

Id. at 728 (citation omitted).

       Even though a full sentencing proceeding may be held, when a

sentence is pre-determined based on the facts of the crime, the sentence

must be vacated. For example, in Martin, three judges agreed in advance to

impose identical sentences on six different defendants who were involved in

the sale of heroin. Martin, 351 A.2d. at 651. Even though the trial court

heard mitigating evidence and argument,12 our Supreme Court held that

“[t]he procedures employed by the sentencing court . . . ignore[d] the basic

premises of Pennsylvania individualized sentencing,” and it vacated the

sentences. Id. at 657, 659.

       Similarly, in Commonwealth v. Knighton, 415 A.2d 9, 11-12 (Pa.

1980), the sentencing court held a hearing at which defense counsel

presented mitigating factors and the defendant exercised his right of

allocution. However, in an attempt to avoid bias against the defendant, the

____________________________________________


12
   Before imposing sentence on one of the defendants, and in response to
mitigating evidence relative to that defendant, the trial court stated,
“[Defendant] was found guilty here of sales and we treated the others the
same way. . . . The court has already determined it’s three to ten years is
[w]hat it’s going to do. Why should I do any different in this case?” Id. at
652–53.



                                          - 21 -
J-A33040-16


judge imposed a sentence recommended in advance by a “sentencing

council” of his colleagues. 415 A.2d at 12. Our Supreme Court vacated the

sentence, saying that it was an “empty gesture” to allow the defendant to

speak when his sentence had already been determined. Id. at 12-13; see

also Commonwealth v. Coulverson, 34 A.3d 135, 150 (Pa. Super. 2011)

(holding that even though the sentence imposed was in the standard

guidelines range and followed a PSI and sentencing hearing, it had to be

vacated because it was not individualized to the defendant and was based on

the severity of the crime alone; the court only perfunctorily acknowledged

the PSI and made no discussion of the defendant’s “life, his cooperation and

remorse, his attempts at reclaiming a productive role in society, or the

possibility that . . . he might succeed at rehabilitation”).13
____________________________________________


13
   Under this same reasoning, standardized sentences based on a class of
crimes or criminals are prohibited. As we explained in Commonwealth v.
Mola, 838 A.2d 791 (Pa. Super. 2003),

             Imposing a standardized sentence on all drug offenders is
       a manifest abuse of discretion. Pennsylvania has long endorsed a
       policy of indeterminate, individualized sentencing. That policy is
       incompatible with a one-size-fits-all sentence. In effect, the trial
       court [must not choose] the maximum sentence based on
       seriousness of the crime alone, which is impermissible. The trial
       court must consider each crime and each defendant in light of
       the total circumstances and fashion an appropriate sentence.

838 A.2d at 794 (citations omitted) (vacating sentence that was imposed as
part of a blanket policy aimed at deterrence of drug offenders); see also
Commonwealth v. Franklin, 446 A.2d 1313, 1318 (Pa. Super. 1982) (“The
court cannot impose a sentence pursuant to any predetermined policy”).



                                          - 22 -
J-A33040-16


       A claim that a sentencing court ignored the foregoing mandates and

sentenced a defendant without taking into account his or her character and

background therefore raises a substantial question that the sentence is

inappropriate under the Sentencing Code. See Goggins, 748 A.2d at 727-

28. Here, Appellant argues that the court determined his sentence prior to

the sentencing hearing, thereby violating the fundamental norm that

Appellant’s sentence be individualized. This argument raises a substantial

question which we now review on the merits. Id.14

       Our standard of review follows: “Sentencing is a matter vested in the

sound discretion of the sentencing judge, and a sentence will not be
____________________________________________


14
   We note that Appellant does not claim merely that specific sentencing
facts of record were not considered or were inappropriately considered by
the court; rather, Appellant alleges that the court pre-determined Appellant’s
sentence, and therefore did not give meaningful consideration to any of the
sentencing factors in specific relation to Appellant. This is an important
distinction, because where a sentence falls within the guidelines (as
Appellant’s does), an argument that the trial court failed to consider or did
not accord appropriate weight to various sentencing factors does not
necessarily raise a substantial question. In Dodge, 77 A.3d at 1272 n.8, we
observed:

       [T]his Court's determination of whether an appellant has
       presented a substantial question in various cases has been less
       than a model of clarity and consistency, even in matters not
       involving excessive sentence claims. . . . Careful litigants should
       note that arguments that the sentencing court failed to consider
       the factors proffered in 42 Pa.C.S. § 9721 does present a
       substantial question whereas a statement that the court failed to
       consider facts of record, though necessarily encompassing the
       factors of § 9721, has been rejected.

See also Swope, 123 A.3d at 339.



                                          - 23 -
J-A33040-16


disturbed    on        appeal   absent    a    manifest     abuse    of   discretion.”

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation

omitted). “In order to establish that the sentencing court abused its

discretion, [the defendant] 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.” Williams, 69 A.3d at 741 (quotation marks and

citation omitted). “The rationale behind such broad discretion and the

concomitantly deferential standard of appellate review is that the sentencing

court is in the best position to determine the proper penalty for a particular

offense based upon an evaluation of the individual circumstances before it.”

Id. at 740 (quotation marks and citation omitted). To determine whether the

trial court made the proper considerations during sentencing, “an appellate

court    must,    of     necessity,   review   all   of   the   judge’s   comments.”

Commonwealth v. Bethea, 379 A.2d 102, 106 (Pa. 1977); see also

Commonwealth v. Ritchey, 779 A.2d 1183, 1187 (Pa. Super. 2001) (“As

this Court has stated, the judge’s statement must clearly show that he has

given individualized consideration to the character of the defendant”

(quotation marks and citation omitted)).

        Our careful review of the record convinces us that the trial court

manifestly abused its discretion by pre-determining Appellant’s sentence

without considering individualized factors regarding appellant. We therefore


                                         - 24 -
J-A33040-16


conclude that the sentence must be vacated. We reach our conclusion for

three interrelated reasons.

      First, the trial judge announced his intention to incarcerate Appellant

prior to the commencement of Appellant’s sentencing proceeding and before

receiving any individualized information about Appellant. While addressing

Appellant’s co-defendant, Mr. Buckner, during Mr. Buckner’s sentencing

proceeding, the judge referred to Appellant and told Mr. Buckner in open

court: “He is going to jail, too. He is not walking out of here either.” N.T. at

22. Then, when Appellant’s counsel suggested that the court “was inclined to

send [Appellant] to jail,” the court interjected: “I am going to send him to

jail. Let’s not have any equivocation. He is going to jail, because he and the

guy who went to jail, they are both opposite sides of the same coin. That’s

why he is going to jail, because he creates the guy that is with him.” Id. at

28. The court thus made its intention clear and unequivocal; without hearing

any evidence about Appellant or his circumstances, it planned to send

Appellant to jail.

      In its Rule 1925(a) opinion, the court presented a slightly different

description of what happened at the sentencing hearing. The court said it

had entered the hearing “with a preconceived notion as to what is fair and

just and then articulated its thinking,” which it “expressed . . . with full

recognition that it had not yet heard from the defendant or his counsel.” Tr.

Ct. Op. at 3. The court said it then listened to Appellant’s presentation and


                                     - 25 -
J-A33040-16


“arrived at the same point it started at — [Appellant] is going to jail.” Id.

The court said it reached that conclusion because “the mitigating facts

[Appellant] presented . . . were not persuasive.” Id.

       Although we acknowledge the trial court’s explanation, we cannot

ignore the hearing transcript, which discloses that the court stated

repeatedly and unequivocally before receiving any evidence at Appellant’s

hearing: “He [Appellant] is going to jail, too”; “He [Appellant] is not walking

out of here either”; “I am going to send him [Appellant] to jail;” “He

[Appellant] is going to jail, because he and [his co-defendant] are both

opposite sides of the same coin”; “he [Appellant] is going to jail, because he

creates the guy that is with him.” N.T. at 22, 28. There was no indication in

these statements that the court was floating ideas about a tentative possible

sentence that might be subject to change upon receiving evidence. Indeed,

even though the Sentencing Guidelines made probation a standard range

sentence, there is no indication in the transcript that the court gave

probation any serious consideration at all; the only expressed intent was to

impose jail time.15

____________________________________________


15
   As reflected in the transcript, this case thus stands in contrast to that
where a sentencing judge who, in light of past experience sentencing
defendants for similar crimes, enters a sentencing proceeding with a
preliminary idea of an appropriate sentence for someone who has engaged
in such a crime and who has a similar prior record score. Such a judge still
would have an open mind about what sentence to impose in the case before
him once he received the actual evidence. Here, the court did not express a
(Footnote Continued Next Page)


                                          - 26 -
J-A33040-16


      In this situation, the mere fact that the court listened to Appellant’s

presentation of mitigating factors does not mean that it gave Appellant’s

sentence appropriate individualized consideration. The court’s own Rule

1925(a)    opinion      makes     clear   that   the   court   afforded   Appellant   an

opportunity to argue not so that it could use Appellant’s information to craft

an appropriate individualized sentence, but, at most, to see if Appellant

could rebut the court’s “preconceived notion” of the sentence the court

already had decided to impose. In these circumstances, the sentence was

invalid. See Devers, 546 A.2d at 16; Martin, 351 A.2d. at 653-54, 657-59.

See also Knighton, 415 A.2d at 12-13 (stating defendant’s allocution was a

meaningless gesture when sentence had been pre-determined).

      Second, the court gave an explanation of its sentencing decision that

made clear that the decision was based on factors other than individualized

information about Appellant. The court explained its sentence in terms of a

“two sides of the same coin” theory of drug cases. As the court stated at the

beginning of its Rule 1925(a) opinion —

            Mr. Luketic is a drug addict. He buys heroin and then
      consumes this poison. But, the poison is not self-centered. His
      purchase of this product allows others — like his co-defendant —
      to sell this modern day plague. Both the buyer and the seller
      deserve punishment.

Tr. Ct. Op. at 1. And during the sentencing hearing, the court told Appellant:
                       _______________________
(Footnote Continued)

mere preliminary idea. Rather, it stated at the beginning of Appellant’s
proceeding: “Let’s not have any equivocation. He is going to jail.” N.T. at 28.



                                           - 27 -
J-A33040-16


      We are here imposing sentencing for cases in which you pled
      guilty to, because we have a heroin epidemic in this region. We
      have people who sell dope. We have people who use dope. We
      have people who drive people to get dope, and they disseminate
      it throughout the county. I don’t believe they are independent. I
      believe they are all a part of the same animal. Everyone is going
      to take some share of fat in the game, including you.

Id. at 35-36. Thus, after sentencing Appellant’s co-defendant (Mr. Buckner,

the drug dealer) to jail, the court stated: “[Appellant] is going to jail,

because he and [his co-defendant] who went to jail, they are both opposite

sides of the same coin. That’s why he is going to jail, because he creates the

guy that is with him.” N.T. at 28.

      The court therefore imposed a sentence of incarceration because drug

addicts like Appellant create a market for drug dealers like Mr. Buckner and

thereby feed the “modern day plague” of drug abuse; because Mr. Buckner

was sentenced to incarceration, Appellant — the opposite side of the same

coin — would be incarcerated too. But it is an abuse of discretion when “the

nature of the criminal act [is] used as the sole basis for the determination of

the length of sentence.” Martin, 351 A.2d at 657–58. It also is an abuse of

discretion to base one defendant’s sentence on the sentence imposed on

another   defendant.    See    Coulverson,    34    A.3d   at   147   (stating,

“individualized sentencing remains the controlling norm of the sentencing

process and . . . a sentence befitting one defendant may not befit another”);

Commonwealth v. Kalson, 446 A.2d 1320, 1322 (Pa. Super. 1982)

(“Neither the governing statute on sentencing nor the controlling case law


                                     - 28 -
J-A33040-16


require, or even suggest, that a sentencing judge should consider sentences

imposed on other defendants in that county for the same crime” (footnote

omitted)). Here, by using its two-sides-of-the-coin theory of sentencing, the

trial court did both, and its sentence therefore is invalid.

      Finally, there is no basis for us to conclude that individualized factors

entered into the trial court’s sentencing calculus at all. The court did tell

Appellant, in an apparent reference to treatment programs, “When you

leave. We are going to get you some help” and “Hopefully you’ll get some

intervention while you are [in county prison].” N.T. at 36-37. But there is no

evidence that the court designed its sentence to obtain drug treatment for

Appellant or otherwise to address his rehabilitative needs as a drug addict.

The court did not mandate any sort of drug treatment as one of its

sentencing conditions. See Order of Sentence, 6/1/16.

      Nor can we assume that the court was guided by some unspoken plan

to sentence Appellant in light of his specific needs. If the court had a pre-

sentence report about Appellant, we would “presume that the sentencing

judge was aware of relevant information regarding the defendant's character

and weighed those considerations along with mitigating statutory factors.”

Devers, 546 A.2d at 18. But so far as we can determine from the record,

there was no PSI report here. Nor was there any other significant gathering

of relevant information that the court then employed in its decision. See

Goggins, 748 A.2d at 728 (in absence of PSI, court must “conduct sufficient


                                      - 29 -
J-A33040-16


presentence inquiry such that, at a minimum, the court is apprised of . . .

the   defendant's     personal     history     and   background”);      accord

Commonwealth v. Flowers, 950 A.2d 330, 333 (Pa. Super. 2008) (need

for “sufficient information during the colloquy to substitute for a PSI report,

thereby allowing a fully informed sentencing decision”).

      At the hearing, the court engaged in sufficient interrogation of

Appellant to confirm its view that Appellant had not done enough to cure his

addiction. See Tr. Ct. Op. at 3-4; N.T. at 31-35. But the court never

explained whether or how that view informed its steadfast decision that

“[Appellant] is going to jail.” N.T. at 22. Rather, as noted, the court’s only

explanation of that result was based on factors unrelated to individualized

sentencing: “[Appellant] is going to jail, because he and [his co-defendant]

are both opposite sides of the same coin” and “because he creates the guy

that is with him.” Id. at 28. The record provides no basis to conclude that

the court’s reason for imposing the jail sentence was anything other than

what the court said at the hearing.

      For all of these reasons, the trial court’s sentencing of Appellant failed

to follow the requirements of the Sentencing Code and the decisions of the

Supreme Court and this Court regarding individualized sentencing. The

sentence therefore is invalid. Accordingly, we vacate the judgment of

sentence.




                                      - 30 -
J-A33040-16


      Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




                               - 31 -
