J-S83045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ANDRE RAYMELLE WATLEY                      :
                                               :
                      Appellant                :       No. 2818 EDA 2017

             Appeal from the Judgment of Sentence August 4, 2017
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001701-2009


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED FEBRUARY 20, 2018

       Appellant, Andre Raymelle Watley, appeals from the new judgment of

sentence entered in the Northampton County Court of Common Pleas,

following his jury trial convictions of two counts of firearms not to be carried

without a license, and one count each of conspiracy, false identification to

law enforcement authorities, possession of a controlled substance with intent

to deliver (“PWID”), possession of a controlled substance, possession of a

small amount of marijuana, and two summary motor vehicle offenses.1 We

affirm.

       The relevant facts and procedural history of this case are as follows.


____________________________________________


1
  18 Pa.C.S.A. §§ 6106(a)(1), 903(a)(1), 4914, 35 P.S. §§ 780-113(a)(30),
(a)(16), (a)(31), 75 Pa.C.S.A. §§ 3362(a)(3), and 1543(a), respectively.
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On February 13, 2009, police stopped Appellant’s vehicle for speeding.

During the stop, police observed a firearm in plain view and removed the

occupants from the vehicle.       Appellant fled on foot; however, police

identified Appellant as the driver of the vehicle, based on a statement by the

passenger and receipts found inside the vehicle.         Police subsequently

arrested Appellant, and the Commonwealth charged him with various

firearm, drug, and motor vehicle offenses.      On July 15, 2010, the jury

convicted Appellant of two counts of firearms not to be carried without a

license, and one count each of conspiracy, false identification to law

enforcement authorities, PWID, possession of a controlled substance,

possession of a small amount of marijuana, and two summary motor vehicle

offenses.   The court sentenced Appellant on September 17, 2010, to an

aggregate term of one hundred and forty-eight (148) to three hundred (300)

months’ imprisonment, which included two mandatory minimum sentences

pursuant to 42 Pa.C.S.A. § 9712.1. Appellant did not file a direct appeal.

      On May 12, 2011, Appellant timely filed a pro se PCRA petition, which

resulted in the reinstatement of his direct appeal rights nunc pro tunc on

May 27, 2011. That same day, Appellant filed a notice of appeal nunc pro

tunc. This Court affirmed the judgment of sentence on November 25, 2013,

and our Supreme Court denied allowance of appeal on July 8, 2014.        See

Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc),

appeal denied, 626 Pa. 684, 95 A.3d 277 (2014). Appellant timely filed a


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pro se PCRA petition on June 2, 2015.         The court appointed counsel, who

filed an amended PCRA petition on July 10, 2015. The parties proceeded to

PCRA hearings on October 9, 2015 and October 30, 2015. On January 27,

2016,     the   PCRA   court    determined    Appellant’s   mandatory   minimum

sentences were unconstitutional pursuant to Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and vacated Appellant’s

judgment of sentence.          The PCRA court denied PCRA relief in all other

respects.   Appellant timely filed a notice of appeal on February 19, 2016.

This Court affirmed on December 29, 2016, and our Supreme Court denied

allowance of appeal on June 12, 2017.         See Commonwealth v. Watley,

153 A.3d 1034 (Pa.Super. 2016), appeal denied, ___ Pa. ___, 169 A.3d 574

(2017).

        On August 4, 2017, the parties appeared for Appellant’s resentencing

hearing.    After an explanation of its reasons for the sentence, the court

imposed a term of forty-two (42) to eighty-four (84) months’ imprisonment

for the first firearms not to be carried without a license conviction, a

consecutive term of forty-two (42) to eighty-four (84) months’ imprisonment

for the second firearms not to be carried without a license conviction, a

consecutive term of seventeen (17) to one hundred and twenty (120)

months’ imprisonment for the PWID conviction, a consecutive term of

seventeen (17) to one hundred and twenty (120) months’ imprisonment for

the conspiracy conviction, a consecutive term of six (6) to twelve (12)


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months’ imprisonment for the false identification to law enforcement

authorities conviction, and a consecutive term of fifteen (15) to thirty (30)

days’ imprisonment for the possession of a small amount of marijuana

conviction; thus, Appellant received an aggregate term of one hundred

twenty-four and one-half (124½) to four hundred and twenty-one (421)

months’ imprisonment.       Appellant timely filed a post-sentence motion for

reconsideration of sentence on August 7, 2017, which the court denied on

August 18, 2017.      Appellant timely filed a notice of appeal on August 29,

2017.     On August 30, 2017, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on August 31, 2017.

        Appellant raises the following issue for our review:

           THE SENTENCING COURT ABUSED ITS DISCRETION WHEN
           IT IMPOSED A MORE SEVERE AGGREGATE MAXIMUM
           SENTENCE ON APPELLANT AT RE-SENTENCING THAN
           JUDGE   SMITH   DID  AT   APPELLANT’S   ORIGINAL
           SENTENCING.

(Appellant’s Brief at 4).

        Appellant argues the court improperly imposed an increased aggregate

maximum sentence of four hundred and twenty-one (421) months’

imprisonment.      Appellant asserts the record does not contain additional

objective information to justify the imposition of an aggregate maximum

sentence, which is ten years more than the original aggregate maximum

sentence.     Appellant avers his increased aggregate maximum sentence is


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detrimental to him. Appellant concludes his increased aggregate maximum

sentence is the result of judicial vindictiveness, and this Court should vacate

and remand for resentencing.       As presented, Appellant challenges the

discretionary aspects of his sentence. See Commonwealth v. Robinson,

931 A.2d 15 (Pa.Super. 2007) (en banc) (explaining claim of judicial

vindictiveness constitutes challenge to discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspect of sentencing issue:

         We conduct a four-part analysis to determine: (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).

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

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of

a sentence are waived if they are not raised at the sentencing hearing or

raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal


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denied, 574 Pa. 759, 831 A.2d 599 (2003).

       When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,

621-22 (2002); Pa.R.A.P. 2119(f).       “The requirement that an appellant

separately set forth the reasons relied upon for allowance of appeal ‘furthers

the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.’”           Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745,

964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,

1387    (Pa.Super.   1989)   (en   banc)   (emphasis    in    original)).   “The

determination of what constitutes a substantial question must be evaluated

on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,

1018 (Pa.Super. 2003).       A substantial question exists “only when the

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.”    Sierra, supra at 913 (quoting Commonwealth v.


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Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).        Significantly, this Court has held that a

claim of judicial vindictiveness in resentencing raises a substantial question

for our review. Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa.Super.

2010), appeal denied, 608 Pa. 654, 12 A.3d 752 (2010).

      Here, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion, Rule 1925(b) statement, and

Rule 2119(f) statement.      Additionally, his claim of judicial vindictiveness

appears to raise a substantial question for our review. See id.

      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

         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.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

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

      Pursuant to Section 9721(b), “the 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


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relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”        42 Pa.C.S.A. § 9721(b).                “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”     Id.    Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id. “In

particular, the court should refer to the defendant’s prior criminal record, his

age,   personal      characteristics   and   his     potential       for     rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).

       Generally, a presumption of vindictiveness arises if the court imposes

a harsher sentence upon resentencing.         Robinson, supra at 22.                “Absent

evidence    [that]    a   sentencing   increase     is   justified    due     to   objective

information     concerning     a   defendant’s       case,     the         presumption    of

vindictiveness cannot be rebutted.” Commonwealth v. Barnes, 167 A.3d

110, 124 (Pa.Super. 2017) (en banc).               Significantly, no presumption of

vindictiveness arises when the original sentence and the new sentence are


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imposed by two different judges.     Tapp, supra at 1205.   Thus, without a

presumption of vindictiveness, the defendant must affirmatively prove actual

vindictiveness.    Id.   When a defendant fails to prove vindictiveness by

affirmative evidence, his right to due process has not been infringed, and he

is not entitled to resentencing on that ground. Id.

      Instantly, a different judge presided over the August 4, 2017

resentencing.     As such, no presumption of vindictiveness arises, based on

Appellant’s increased aggregate maximum sentence. See id. Additionally,

Appellant has failed to present any evidence of actual vindictiveness; and

nothing in the record suggests the new sentence was the result of

vindictiveness. See id. Further, the court thoroughly explained its reasons

for the August 4, 2017 sentence as follows:

         When Judge Smith imposed the original sentence on
         September 17, 2010, he stated: “Because of your prior
         record, I am concerned about your rehabilitative potential.
         It would appear that some lengthy period of incarceration
         would be appropriate to try to address your rehabilitative
         concerns and also to protect the public. These are serious
         offenses. They involve firearms, they involve possession
         of [e]cstasy with intent to deliver it. …[T]his is not the
         first time that you’ve had issues with the law. Prior
         attempts at rehabilitation have failed.” Having reviewed
         the record as a whole and finding that we concurred with
         these conclusions by Judge Smith, and concluding that the
         aggregate minimum sentence imposed by Judge Smith
         was appropriate, we sought to fashion a sentence at
         resentencing that would be of a similar minimum duration.
         This was not possible without imposing a sentence in the
         aggravated range, unless each of the sentences was run
         consecutively.   Accordingly, we imposed a consecutive
         sentence on each of the charges, at the highest end of the
         standard range on each, for an aggregate minimum

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         sentence in the standard range that would best achieve
         the same goal that Judge Smith’s sentence was imposed to
         achieve.      We believe that such concerns were
         appropriately considered by us in fashioning the current
         sentence. While we recognize that [Appellant’s] aggregate
         maximum has consequently been increased by 121
         months, his minimum has been decreased by 23 months,
         15 days. We do not believe that having an increased
         aggregate maximum will be detrimental to [Appellant],
         insofar as his appropriate behavior and participation in
         programming in state prison will still permit him to be
         paroled sooner than he would have been under his original
         sentence—he will simply have a longer period of parole,
         which can only be of benefit to the community, in addition
         to serving the rehabilitative needs of [Appellant].

         For all of these reasons, it is respectfully suggested that
         the sentence imposed on August 4, 2017, was appropriate.

(See Trial Court Opinion, filed October 2, 2017, at 5-6) (internal citations

omitted).      Under these circumstances, the court properly explained its

reasons for Appellant’s increased aggregate maximum sentence.            Thus,

Appellant’s challenge to the discretionary aspects of his sentence fails on the

ground asserted. See Hyland, supra. Accordingly, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018


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