J-S24028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STANLEY ELAM,                              :
                                               :
                       Appellant               :   No. 1555 MDA 2017


           Appeal from the Judgment of Sentence, August 10, 2017,
              in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0003940-2016,
                                        CP-36-CR-0003941-2016,
                                        CP-36-CR-0004386-2016.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 28, 2018

        Stanley Elam appeals from the judgment of sentence imposed after a

jury convicted him of with one count of delivery of a controlled substance at

three different dockets.1 After careful review, we affirm.

        Elam’s convictions stem from his delivery of heroin to a confidential

informant on three different occasions at three separate locations from

January 2016 to February 2016. On May 3, 2017, a jury convicted him on

these charges. Sentencing was deferred pending the completion of a pre-

sentence investigation ordered by the trial court. On August 10, 2017, Elam

was sentenced to consecutive terms of imprisonment of 15 months to 5 years

on each count, for an aggregate sentence of not less than 45 months nor more
____________________________________________


1   35 Pa. C.S.A. § 780-113(a)(30)
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than 15 years. On August 22, 2017, Elam filed a post sentence motion to

modify sentence which the court denied on September 7, 2017. Elam filed his

notice of appeal on October 6, 2017.

      Elam’s appeal challenges the discretionary aspect of his sentence.

“There is no absolute right to appeal when challenging the discretionary aspect

of a sentence.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.

2010). Rather, an appellant must petition for allowance of appeal pursuant

to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254 (Pa.

Super. 2004). When an appellant challenges a discretionary aspect of

sentencing, we must conduct a four-part analysis before we reach the merits

of the Appellant's claim. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.

Super. 2011). In this analysis, we must determine: (1) whether the present

appeal is timely; (2) whether the issue raised on appeal was properly

preserved; (3) whether Elam filed a statement pursuant to Pa.R.A.P. 2119(f);

and (4) whether Elam has raised a substantial question that his sentence is

not appropriate under the Sentencing Code. Id.

      Elam filed a timely notice of appeal, and properly preserved his claim in

a post-sentence motion. Additionally, Elam has complied with Pa.R.A.P.

2119(f). See Elam's Brief at 13. We must therefore determine whether Elam

has raised a substantial question for our review.

      A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

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norms underlying the sentencing process. Commonwealth v. Ventura, 975

A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). A fundamental norm

in the sentencing process is an individualized sentence for each defendant.

Commonwealth v. Devers, 546 A.2d 12, 13(Pa. 1988).                 Individualized

sentencing is authorized by the Sentencing Code which requires the

sentencing court to consider public safety, the gravity of the offense in relation

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

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

(citing Pa. C.S.A. § 9721). Here, within his 2119(f) statement Elam asserts:

             Mr. Elam contends that the trial court’s aggregate
         sentence of forty-five (45) [months] to fifteen (15) years of
         incarceration constituted a manifest abuse of discretion
         because the court impermissibly relied on the seriousness
         of the offense and the ongoing heroin crisis in the county in
         imposing consecutive sentences.

Elam’s Brief at 13.

      Essentially, Elam argues that in sentencing him, the trial court failed to

fashion an individualized sentence, and considered improper factors.

Accordingly, Elam’s claim raises a substantial question. See Commonwealth

v. King, __A.3d__ (Pa. Super. 2018) (finding that appellant’s assertion that

the sentencing court considered improper factors by admitting a potentially

erroneous victim impact statement raised a substantial question).

      Our standard of review when analyzing the discretionary aspects of

sentencing is well established:



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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, 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. Booze, 953 A.2d 1263, 1278-79 (Pa. Super. 2008).

      Elam contends that the sentencing court “failed to comply with statutory

sentencing norms requiring individualized sentence and [that imposing

consecutive sentences] was a manifest abuse of discretion.” Elam’s Brief at

12. He further argues that the court impermissibly relied on the serious nature

of the crime and the present heroin crisis while ignoring Elam’s unique

characteristics, thereby running afoul of the basic premises of Pennsylvania’s

individualized sentencing. Id. 13-14.

      In determining whether the trial court made the proper considerations

during sentencing, we must review the sentencing judge’s comments to

ensure that he afforded “individualized consideration to the character of the

defendant.” Commonwealth v. Ritchey, 779 A.2d 1183, 1187 (Pa. Super.

2001). Before issuing Elam’s sentence, the trial judge commented as follows:

           I've gone over the presentence report in detail. I note by
         way of summary you're 57 years of age. You're single. You
         went through the 11th grade in South Philadelphia High
         School.

            You report having one son, but you provided no details
         to the Probation Department.



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          These involve three - these offenses involve three heroin
       deliveries on January 19th, 21st and February 16th all in
       2016.

          You have no reported juvenile record.

          You have an adult record for several offenses of receiving
       stolen property, conspiracy, criminal intent, is a
       misdemeanor in the third degree; violation of the Controlled
       Substance Act is a felony, and then there is the subsequent
       DUI and drug paraphernalia charge.

          You were born in Philadelphia. You have six brothers and
       two sisters. Four of your brothers and one sister are now
       deceased.

          As I noted, you left South Philadelphia High School due
       to having to repeat 11th grade, so you went to South
       Carolina and you worked on a farm for a year before you
       came back to Philadelphia.

         Back in Philadelphia you had employment as a carpenter
       and as a truck driver. You then came to Lancaster in about
       2000.

          You were living with a girlfriend prior to your
       incarceration in Lancaster County Prison on these charges.

          You did not obtain your GED after leaving high school,
       nor is there any vocational or further education training.

       (At this point the Defendant interrupts to note that he has
       sprinkler training)

          You report being in good overall general heath. You
       report some alcohol and crack cocaine use at 17, as well as
       some marijuana use, and describe yourself as a social
       drinker.

          You have had recent employment as a truck driver and
       as a forklift operator, and as Ms. Low indicated this
       afternoon, you also had employment installing sprinklers.

             You have a fines and costs balance of about $725. It's
       a little less than that, but that's approximately what it is.

           I've also gone over the charging documents that are
       attached to the presentence report. And we have revised

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       the sentencing guidelines to accurately reflect your prior
       record score.

         I've also reviewed the letter that you submitted, and in
       addition I did sit through the jury trial.

          In addition to the presentence report and the
       attachments, I have considered the provisions of the
       sentencing code and the sentencing guidelines.

          I've considered the circumstances of these offenses, in
       that these are three deliveries in a relatively short period of
       time.

          I've considered the authorized penalties for these
       offenses. I've considered the need to protect the
       community.

           As both your attorney and the prosecuting officer
       indicated, and the district attorney referenced, heroin abuse
       is a crisis at this point, not only in this country, but in this
       county.

          I've considered your rehabilitative needs. I have
       considered what Ms. Low said on your behalf, the positions
       expressed by the Commonwealth, and I've considered what
       you have said.

         It's obvious that you are an intelligent individual. It's
       obvious that you have been able to maintain periods where
       you've had productive employment.

          It's equally obvious that you have a longstanding criminal
       history.

          You have been involved in a number of offense, including
       one that resulted in incarceration in the state correction
       institution.

          Anything you say about it being entrapment or not
       entrapment, that ship has sailed at this point. As I told you,
       that's the final conviction.

          There has to be some type of deterrence to make clear
       to people that this type of activity is simply not something
       that's worthwhile to engage in.



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         And for that reason I concur fully with the Commonwealth's
         request that these sentences should be consecutive.

            This is not a one time situation. In addition, it is clear
         looking over your work history that you do not sell to
         support your habit out of desperation, nor is there any
         indication what you've reported to the Probation
         Department that you have any type of active addiction that
         you would be at least wiling to disclose.

N.T. 8/10/17 at 11-15.

      Elam takes issue with the following two statements made by the trial

court:

          As both your attorney and the prosecuting officer indicated,
         and the district attorney referenced, heroin abuse is a crisis
         at this point, not only in this country, but in this county. Id.
         at 17.

         There has to be some type of deterrence to make clear to
         people that this type of activity is simply not something
         that’s worthwhile to engage in. And for that reason I concur
         fully with the Commonwealth’s request these sentences
         should be consecutive. Id.

      Elam claims that these statements demonstrate that the judge imposed

consecutive sentences not based on his personal circumstances, but rather on

“the seriousness of the offense as it relates to the purported heroin and opioid

crisis . . .” Id. at 16. However, Elam ignores all of the other reasons the court

articulated for imposing consecutive sentences.

      Here, the sentencing court set forth multiple reasons for imposing

consecutive sentences.    The court noted that Elam was convicted of three

separate heroin deliveries; he had a prior record beginning in 1989 which

included drug offenses; he served time in state prison; he demonstrated


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failure to rehabilitate. Further, the record indicated that Elam was involved in

drug dealings of a larger capacity.

        Elam relies on this Court’s decision in Commonwealth v. Mola, 838

A.2d 791 (Pa. Super. 2003), where we found the trial court abused its

discretion when it imposed a statutory maximum sentence as a means of

general deterrence to prevent future drug dealing. Elam’s Brief at 18. The

present case, however, is easily distinguishable from Mola. First, unlike in

Mola, the trial court did not impose the statutory maximum sentence, but

instead, set Elam’s sentence at the lowest end of the standard range of the

sentencing guidelines.     Elam faced a potential sentence of 90 years’

incarceration under the maximum legal penalty. He had a prior record score

of 4 during his current sentencing, and he had a prior felony drug offense in

2012.     Despite these facts, the trial court decided to set the individual

sentences at the lowest end of the standard range of the sentencing

guidelines.

        More importantly, in Mola, the sentencing court announced a blanket

policy, whereby it would impose a maximum sentence on all drug delivery

cases to discourage illegal drug trafficking, which this Court found to be a

manifest abuse of discretion. Id. at 794. In Elam’s case, there is no such

indication that the trial court was issuing a predetermined sentence on all drug

related crimes. Instead, the court demonstrated that it considered multiple

factors that were personal to Elam as well as deterrence considerations.




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       Elam also relies on our decision in Commonwealth v. Luketic, 162

A.3d 1149 (Pa. Super. 2017) to support his argument. In that case, this Court

vacated the judgment of sentence, finding that the sentencing court failed to

consider individualized factors regarding Luketic. Id. at 1149. In Luketic,

the sentencing court referred to the heroin epidemic as the “modern day

plague.” Elam’s Brief at 19. However, the lynchpin in Luketic, was not the

court’s reference to the community’s drug problem, but rather its pre-

determination of Luketic’s sentence; the court specifically declared that it

would send Luketic to jail before the sentencing hearing even began and

before it received any individualized information about Luketic from the

testimony at the sentencing hearing.2 Id. at 163.
____________________________________________


2 Luketic’s co-defendant, Buckner, was sentenced immediately before Luketic.
Luketic was present at Buckner’s hearing. The judge, referring to Luketic, told
Buckner during his hearing: “He is going to jail, too. He is not walking out of
here either.” Luketic’s counsel expressed that the court favored sending him
to jail, to which the court responded: “I am going to send Luketic to jail. Let’s
not have any equivocation. He is going 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.” Without hearing evidence pertaining to Luketic, the court
undoubtedly decided his jail sentence.

Despite probation being the standard range sentence, the court made no
indication that it would even consider another sentence after hearing evidence
pertaining to Luketic. Although the court listened to Luketic’s mitigating
factors, it did not properly take them into account.

The court’s 1925(a) opinion clearly showed that it “afforded [Luketic] an
opportunity to argue not so that it could use [Luketic’s] information to craft
an appropriate individualized sentence, but at most, to see if [Luketic] could
rebut the court’s ‘preconceived notion’ of the sentence the court already had
decided to impose. In these circumstances, the sentence was invalid.”
Luketic, 162 A.3d at 1163-4.

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      No such predetermination of sentence occurred Elam’s case. Moreover,

the sentencing court’s mention of the opioid crisis was legally proper. When

fashioning a sentence, the court must follow principles that are consistent with

public protection and the impact the crime has on the community. 42

Pa.C.S.A. § 9721(b).      Additionally, our Supreme Court has held that it is

appropriate for sentencing courts to consider the effects on the community

from illegal drug distribution and that the courts are afforded flexibility in

evaluating the real world effects of the offense when crafting the sentence.

Commonwealth v. Ali, 149 A.3d 29, 38 (Pa. 2016).

      In addition to accounting for community impact, the court must consider

individualized aspects as well, to ensure a “measured approach” during

sentencing. Id. at 39. There is a presumption that when a presentence report

exists, the sentencing court was aware of its contents and weighed those

considerations, which are relevant to the defendant’s character appropriately.

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545-46 (Pa. Super. 1997).

Here, the trial court postponed sentencing after Elam’s conviction in order to

procure a pre-sentence report, and noted that it considered the report during

sentencing.

      Our careful review of the record convinces us that the trial court did not

abuse its discretion in fashioning Elam’s sentence.           The court properly

considered    public   safety,   community    impact,   and    Elam’s   individual

characteristics. Most notably, the court made a thorough statement before

imposing Elam’s sentence which included an extensive account of Elam’s

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personal background, such as his age, family history, education, lack of a

juvenile record, work history, productive employment history, vocational

training, limited drug/alcohol use, overall good health, and intelligence. It is

evident to us that the sentencing court engaged in a meaningful weighing of

all the sentencing factors, and that Elam is merely displeased with the weight

the court gave the mitigating factors.

      For the foregoing reasons, we affirm Elam’s judgment of sentence.

Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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