J-S07015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                     v.

DAVID KEMPER CARTER

                          Appellant                 No. 1252 MDA 2016


            Appeal from the Judgment of Sentence July 9, 2015
             In the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0001878-2014



BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 07, 2017

      David Kemper Carter appeals from the July 9, 2015 judgment of

sentence of five to ten years imprisonment.     Sentence was imposed after

Appellant was convicted by the trial court of a violation of the Uniform

Firearms Act (“VUFA”), i.e., possession of a firearm by a prohibited person,

and after he entered a guilty plea to possession of a controlled substance

with intent to deliver (“PWID”).      We reject Appellant’s challenge to the

discretionary aspects of the sentence imposed and affirm.

      On April 21, 2015, Appellant proceeded to a jury trial on the PWID

charge. The VUFA offense had been severed and was to be adjudicated by

the trial court.   The following proof was adduced at that proceeding.   On

October 18, 2014, Appellant was on state parole, and Agents Tracy Gross,
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Jason LaMay, Jon Lahr, and Matt Kieski of the Pennsylvania Board of

Probation and Parole conducted a visit at Appellant’s home on 1306 Scott

Street, Williamsport.   When the agents arrived, Appellant was lying on a

couch immediately to the right of the front door and invited them into his

house. Appellant’s wife and other people were present.

      Agent Gross and Appellant spoke in the kitchen, where Agent Gross

asked Appellant if there were any items in the house that would constitute a

violation of his parole. Appellant acknowledged that there was marijuana in

his wife’s purse, more marijuana on top of the refrigerator, and a gun on the

sofa where he had been lying. Appellant’s wife gave her handbag to Agent

Gross, who looked inside and found a large baggie containing nineteen

smaller baggies of marijuana. Agent Gross recovered additional marijuana,

consisting of eighty-eight individually packaged bags of marijuana worth ten

dollars each, on top of the refrigerator. The weapon, a loaded .22 caliber

semiautomatic handgun, was on top of the couch, but it was underneath a

pillow.   The agents also recovered a digital scale on the nightstand in an

upstairs bedroom, a holster underneath the bed, and ammunition for the

gun on top of the refrigerator.      An expert witness indicated that the

marijuana was possessed with intent to deliver.

      After this proof was submitted at the jury trial, a mistrial was declared

due to a reference to infirm evidence.         The trial court proceeded to

adjudicate the VUFA offense. Appellant’s wife Heather Marie Hersh testified

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that the gun belonged to her and that she purchased it for protection. The

trial court found Ms. Hersh’s testimony incredible and concluded that

Appellant, a convicted felon, possessed the weapon recovered on the couch.

It adjudicated Appellant guilty of the VUFA violation. Thereafter, on May 12,

2015, Appellant elected to plead guilty to PWID pursuant to a negotiated

plea agreement whereby he was to receive a concurrent sentence on that

crime.

     On July 9, 2015, the matter proceeded to sentencing, where the trial

court had the benefit of a presentence report. Since Appellant had a prior

record score of five, the standard range for the VUFA conviction was five to

six years, with an aggravated range of seven years.        The Commonwealth

asked for an aggravated range sentence because Appellant’s young

grandchildren were present on the day of the home visit and the loaded gun

was accessible to them. It also pointed out that Appellant had three prior

convictions for PWID and one for carrying an unlicensed gun.

     Appellant   argued   for   a   mitigated   range   sentence   based   upon

Appellant’s cooperation with Agent Gross on the day of the home visit and

due to “serious medical concerns that [Appellant] faces on a day-to-basis.”

N.T. Sentencing, 7/9/15, at 5. Specifically, Appellant had been shot in the

spine, had a colostomy, and had a history of kidney and heart problems and

urinary tract infections. Appellant pointed out to the trial court that he had

not committed a criminal offense since 2006.       Finally, Appellant asserted

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that he bought the gun for self-protection, after he was assaulted by

neighbors.

      Appellant was sentenced to a standard-range sentence of five to ten

years imprisonment for the VUFA conviction, and, concurrently, as required

by the plea agreement, on the PWID offense. He filed a timely motion for

reconsideration of the sentence, maintaining that it should have been in the

mitigated range due to the noted health problems and his period of good

behavior. That motion was denied, and Appellant filed a direct appeal, which

was dismissed due to his failure to file a brief. Appellant filed a timely PCRA

petition, counsel was appointed, and Appellant’s appellate rights were

reinstated nunc pro tunc. This timely appeal followed.     Appellant complied

with the court’s directive to file a Pa.R.A.P. 1925(b) statement, and the

matter is read for our review.

      Appellant presents this question:

      I.     Did the trial court abuse its discretion when it imposed
             periods of incarceration for a manifestly excessive
             aggregate sentence of five (5) years to ten (10) years
             when the Court failed to consider mitigating factors such
             as Mr. Carter's medical needs, his cooperation with police
             and parole agents, and his motives for possessing the
             firearm?

Appellant’s brief at 11.

      As we recently observed in Commonwealth v. McLaine, 150 A.3d

70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to

the review of challenges to the discretionary aspects of a sentence as of

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right.” Instead, to invoke our jurisdiction involving a challenge to the

discretionary aspects of a sentence, an appellant must satisfy the following

four-part test:

       (1) whether appellant has filed a timely notice of appeal, see
       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
       has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id.

       Instantly, Appellant filed a timely appeal, and preserved his contention

in his motion for reconsideration of sentence as well as his Pa.R.A.P. 1925(b)

statement.     Additionally, his brief contains a Pa.R.A.P. 2119(f) statement.

See     Appellant’s brief at 16.1        Appellant maintains that his sentence is

excessive as the sentencing court did not consider the mitigating facts at

issue herein.     Appellant relies upon Commonwealth v. Perry, 883 A.2d

599, 602 (Pa.Super. 2005), wherein we ruled that the defendant raised a

substantial question when he averred that his sentence was manifestly

excessive and that the court “failed to consider substantial mitigating factors




____________________________________________


1
    The Commonwealth has not filed its brief in this matter.



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presented on his behalf.” Accordingly, Appellant has presented a substantial

question, and we will address the merits of his claim on appeal.2

       We note that:

            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, the appellant 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.

           When imposing sentence, a court is required to consider the
       particular circumstances of the offense and the character of the
       defendant. In considering these factors, the court should refer to
       the    defendant's   prior    criminal    record, age,   personal
       characteristics and potential for rehabilitation.

McLaine, supra at 75–76.

       The seminal case setting forth the parameters of the Superior Court’s

review of a sentence is Commonwealth v. Walls, 926 A.2d 957 (Pa.

2007). The Walls Court stressed the deferential nature of our examination

of any sentence, stating that the “sentencing court is in the best position to

determine the proper penalty for a particular offense based upon an
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2
   We acknowledge that the Superior Court has issued conflicting decisions
as to what constitutes a substantial question, including whether a substantial
question is raised when the defendant claims that the court did not consider
mitigating factors. See Commonwealth. v. Dodge, 77 A.3d 1263, 1272 n.
8 (Pa.Super. 2013) (en banc). In light of the alignment of Appellant’s
averments set forth in Perry, we conclude that a substantial question is
raised herein.




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evaluation of the individual circumstances before it.”         Id. at 961 (citation

and quotation marks omitted). Our Supreme Court noted that this Court’s

ability to review a sentence is constrained by 42 Pa.C.S. § 9781(c).            That

statute provides that we can vacate a sentence and remand for re-

sentencing only if we find 1) that the court intended to sentence within the

guidelines but “applied the guidelines erroneously;” 2) a sentence was

imposed within the guidelines “but the case involves circumstances where

the application of the guidelines would be clearly unreasonable;” or 3) “the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S. § 9781(c). “In all other cases the

appellate court shall affirm the sentence imposed by the sentencing court.”

Id.

      Thus, since the present case was within the guidelines, we can reverse

only if application of the guidelines was clearly unreasonable.             While the

statute   does   not   contain   a   definition   of   what   renders   a   sentence

unreasonable, the Walls Court filled in that gap, stating: “‘unreasonable’

commonly connotes a decision that is ‘irrational’ or not guided by sound

judgment.” Id. at 963.      Additionally, § 9781(d) of the Sentencing Code

provides that when we review the record, we must have regard for:

      (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 presentence investigation.

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

        (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

        The Supreme Court in Walls held that a sentence can be deemed

unreasonable only after review of the four elements contained in § 9781(d)

or if the sentencing court failed to take into account the factors outlined in

42 Pa.C.S. § 9721(b). That statute states in pertinent part:

        [T]he court shall follow the general principle that the sentence
        imposed should call for confinement that is consistent with the
        protection of the public, the gravity of the offense as it relates to
        the impact on the life of the victim and on the community, and
        the rehabilitative needs of the defendant. The court shall also
        consider any guidelines for sentencing adopted by the
        Pennsylvania Commission on Sentencing[.]

42 Pa.C.S. § 9721(b)

        We reject Appellant’s claim that the court did not take into account his

health problems and other mitigating factors, such as his openness with

Parole Agent Gross about the drugs and gun in his home and his period of

good behavior. These facts were argued in mitigation, and the court had a

presentence report. We thus are required to presume that the sentencing

court     weighed     the   mitigating    factors   present    in   this   matter.

Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009). Indeed, our

Supreme Court has articulated that if “it can be demonstrated that the judge

had any degree of awareness of the sentencing considerations,” the



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appellate courts must “presume . . . that the weighing process took place in

a meaningful fashion. It would be foolish, indeed, to take the position that if

a court is in possession of the facts, it will fail to apply them to the case at

hand.”   Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). In the

present case, the sentencing court was well aware of all the facts that

Appellant now relies upon in mitigation of his sentence.

      Additionally, our review of the court’s statements in support of its

sentence confirm that it actually considered the mitigating circumstances

herein. In justification of its sentence, it observed that the sentence “was at

the lowest end of the standard range,” that Appellant had a prior record

score of five, and that he received a concurrent sentence on a PWID charge.

Trial Court Opinion, 9/20/16, at 2.   In its sentencing order, the court stated

that it “rejected the request for an aggravated sentence due to, in part, the

fact that [Appellant] had had a substantial period of good behavior after his

last criminal act[.]” Sentencing Order, 7/9/15, at (unnumbered page) 2. It

also asked that “the State Correctional Institute when classifying [Appellant]

consider his medical needs in assigning him to an appropriate place of

incarceration.” Id.    In further support of its sentencing decision, the

sentencing court articulated that Appellant “chose to possess a loaded .22

caliber semi-automatic pistol on a couch cushion within his reach at his

residence while also possessing drugs with the intent to deliver them” while

children were visiting. Trial Court Opinion, 9/20/16, at 4. In its order and

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opinion, the court expressly weighed all the pertinent sentencing factors.

Accordingly, the court did not violate § 9721(b).

      Moreover, our consideration of the factors outlined in § 9781(d)

confirms that this standard-range sentence cannot be characterized as

clearly unreasonable and did not constitute a manifest abuse of discretion.

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011) (where the

sentencing court imposed a standard-range sentence with the benefit of a

pre-sentence report, we will not consider the sentence excessive).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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