J-S41005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD BUTLER BURTON,

                            Appellant                No. 1873 MDA 2016


          Appeal from the Judgment of Sentence September 29, 2016
              in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0005456-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 26, 2017

        Appellant, Ronald Butler Burton, appeals from the sentence imposed

on September 29, 2016 after resentencing. Specifically, he challenges the

sentence on his conviction of conspiracy to commit homicide. We affirm.

        This case is a procedural quagmire. We take the following pertinent

facts from the trial court’s January 27, 2017 opinion and our independent

review of the certified record.

        On January 27, 2011, a jury convicted Appellant of homicide, criminal

conspiracy to commit homicide, firearms not to be carried without a license,

persons not to possess firearms, recklessly endangering another person, and

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*
    Retired Senior Judge assigned to the Superior Court.
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delivery of a controlled substance.1             The charges followed Appellant’s

involvement in the 2009 shooting death of the victim, Brandon Granthon,

during an illegal drug transaction. The same day, the trial court sentenced

Appellant to a term of life imprisonment on the homicide charge, to be

served concurrently with terms of not less than five nor more than ten years

on each of the conspiracy and firearms not be carried without a license

convictions, and not less than one nor more than two years on each of the

persons not to possess, carrying a firearm without a license, and REAP

convictions. On January 20, 2012, this Court vacated Appellant’s judgment

of sentence and remanded for a new trial on the homicide charge and for

resentencing on the remaining charges. (See Commonwealth v. Burton,

43 A.3d 524 (Pa. Super. 2012) (unpublished memorandum)).                     The

Pennsylvania Supreme Court denied review on July 16, 2012.                  (See

Commonwealth v. Burton, 48 A.3d 1246 (Pa. 2012)).

       On remand, the Commonwealth elected not to proceed on the

homicide charge. On October 2, 2012, without the benefit of a pre-sentence

investigation report (PSI), the court resentenced Appellant to an aggregate

term of imprisonment of not less than twenty-two and one-half nor more

than fifty years, which included a sentence of not less than seventeen and

one-half nor more than forty years’ incarceration on the conspiracy
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1
 18 Pa.C.S.A. §§ 2501, 903(a)(1), 6106(a)(1), 6105(a)(1), and 2705; and
35 P.S. 780-113(a)(30), respectively.



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conviction. That sentence was affirmed on July 26, 2013, after this Court

found that Appellant had waived his discretionary aspects of sentence

challenge.      (See Commonwealth v. Burton, No. 1936 MDA 2012,

memorandum opinion at **5-6 (Pa. Super. filed July 26, 2013)). Appellant

did not file a petition for allowance of appeal with our Supreme Court.

       On March 27, 2014, Appellant filed a pro se PCRA petition seeking

reinstatement of his right to file a post-sentence motion nunc pro tunc and

challenging the discretionary aspects of his sentence.        Retained counsel2

filed an amended PCRA petition.            On February 10, 2015, the PCRA court

granted Appellant leave to file a post sentence motion nunc pro tunc limited

to the discretionary aspects of his sentence, and denied the remainder of his

petition.

       On March 10, 2015, Appellant filed post-sentence motions nunc pro

tunc and contemporaneously appealed the court’s February 10, 2015 order.

On March 10, 2016, this Court affirmed the PCRA court’s order to the extent

that it restored Appellant’s direct appeal rights nunc pro tunc. We vacated it

as to Appellant’s remaining claims, because the court lacked jurisdiction to

address them after it reinstated his direct appeal rights.      Additionally, we

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2
  Appellant previously had requested that the court appoint counsel, which it
did. Thereafter, Appellant retained private counsel. On May 27, 2015, the
court granted retained counsel’s motion to withdraw and appointed conflict
counsel.




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quashed the appeal as premature, inasmuch as it purported to challenge the

disposition of Appellant’s post-sentence motions, because no final order had

been entered disposing of them.3               (See Commonwealth v. Burton, No.

457 MDA 2015, unpublished memorandum at *9 (Pa. Super. filed Mar. 10,

2016)).

       On June 8, 2016, pursuant to Appellant’s request, the trial court

ordered a PSI and scheduled a resentencing hearing.            On September 29,

2016, with the benefit of the PSI, the trial court resentenced Appellant to an

aggregate term of incarceration of not less than twenty-two and one-half nor

more than forty-five years, which included a sentence of not less than twelve

nor more than twenty-four years on the conspiracy conviction. On October

11, 2016, the trial court denied Appellant’s post-sentence motion for

modification of sentence. Appellant timely appealed on November 4, 2016.4

       Appellant raises three questions on appeal.


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3
  On March 18, 2016, the court entered an order confirming the denial
Appellant’s nunc pro tunc post-sentence motions by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). Appellant did not file a direct appeal, although
this Court’s March 10, 2016 decision quashing his appeal as premature
expressly noted that it did so without prejudice to Appellant filing an appeal
once the final order on the post-sentence motions was filed. (See Burton,
No. 457 MDA 2015, at *9 n.10).
4
  Pursuant to the court’s order, Appellant filed a timely concise statement of
errors complained of on appeal on December 8, 2016. The court filed an
opinion on December 19, 2016, and an amended opinion on January 27,
2017. See Pa.R.A.P. 1925.



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      1.    Whether the [trial] court abused its discretion and was
      vindictive when imposing an excess [sic] sentence upon the
      Appellant at his resentencing?

      2.    Whether the [trial] court erred when it did not provide
      factual data or reasoning for the sentence imposed at
      resentencing?

      3.     Whether the [trial] court erred in denying the Appellant of
      [sic] his right of allocution?

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).

      Appellant’s issues challenge the discretionary aspects of his sentence.

“[T]here is no absolute right to appeal when challenging the discretionary

aspect of a sentence.”    Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014) (citations

omitted). “[A]n [a]ppeal is permitted only after this Court determines that

there is a substantial question that the sentence was not appropriate under

the sentencing code.” Id. (citation omitted).

            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. In order to properly present a
      discretionary sentencing claim, a defendant is required to
      preserve the issue in either a post-sentence motion or at
      sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise
      statement. Further, on appeal, a defendant must provide a
      separate statement specifying where the sentence falls in the
      sentencing guidelines, what provision of the sentencing code has
      been violated, what fundamental norm the sentence violates,
      and the manner in which it violates the norm.

Id. at 1268-69 (quotation marks and citation omitted).




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       Here, for ease of disposition, we first note that Appellant’s third issue

challenging allocution is waived because he failed to raise it either in the trial

court or in his Rule 1925(b) statement. (See Petition for Modification of

Sentence, 10/06/16, at unnumbered pages 3-4; Appellant’s Rule 1925(b)

Statement, at unnumbered pages 1-2); see also Commonwealth v.

Jacobs, 900 A.2d 368, 376-77 (Pa. Super. 2006), appeal denied, 917 A.2d

313 (Pa. 2007) (finding allocution issue is waivable challenge, and finding

waiver where it was not raised in trial court); Commonwealth v. Hill, 16

A.3d 484, 427 (Pa. 2011) (“[A]ny issues not raised in a Rule 1925(b)

statement will be deemed waived; the courts lack the authority to

countenance deviations from the Rule’s terms.”).5

       We    now    turn to Appellant’s first    two   issues, which meet all

prerequisites required for a merit review. (See Petition for Modification of

Sentence, at unnumbered pages 3-4; Appellant’s Rule 1925(b) Statement,
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5
  We note briefly that our independent review of the record reveals that
Appellant’s claim would not merit relief. Although the trial court prohibited
Appellant from speaking to the victim’s mother at her request, it directly
asked him if he had anything to say to the court, to which he replied in the
negative. (See N.T. Resentencing, 9/29/16, at 13). Therefore, the court
properly offered Appellant his right to allocution. See Commonwealth v.
Green, 862 A.2d 613, 620 (Pa. Super. 2004), appeal denied, 882 A.2d 477
(Pa. 2005) (“[A] defendant’s right to allocution is violated only if he was not
permitted to speak prior to the docketing of the sentence.”) (citation and
internal quotation marks omitted); Commonwealth v. Hague, 840 A.2d
1018, 1019 (Pa. Super. 2003), appeal denied, 878 A.2d 863 (Pa. 2005)
(“The right to allocution . . . requires the court to inform a defendant that he
has the right to address the court prior to sentencing.”) (citation omitted;
emphasis added).



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at unnumbered page 1; Appellant’s Brief, at 13); Commonwealth v. Tapp,

997 A.2d 1201, 1203 (Pa. Super. 2010), appeal denied, 12 A.3d 752 (Pa.

2010) (claim of judicial vindictiveness in resentencing defendant raises

substantial question); Commonwealth v. Reynolds, 835 A.2d 720, 733-34

(Pa. Super. 2003) (allegation that judge failed to offer specific reasons for

sentence raises substantial question). Therefore, we will review the merits

of these claims. See Dodge, supra at 1268.

      In his first issue, Appellant maintains that the “sentence imposed by

the trial court was excessive and vindictive[.]”     (Appellant’s Brief, at 13).

Appellant’s claim does not merit relief.

      Our standard of review of a sentencing challenge is well-settled:

                   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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

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

      In this case, Appellant argues that his sentence must be vacated

because the conspiracy sentence imposed after the 2016 re-sentencing

hearing is greater than that imposed in his original 2011 sentence, and


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therefore the trial court is presumed to have been vindictive, and bears the

burden of proving otherwise. (See Appellant’s Brief, at 14-16). This issue

lacks merit.

      Appellant relies, in large part, on North Carolina v. Pearce, 395 U.S.

711 (1969), and its progeny, for his vindictiveness argument. (See id. at

14-15).   However, this reliance is misplaced because Pearce has been

overruled in part, limiting its application. See Alabama v. Smith, 490 U.S.

794 (1989).

      In Smith, the United States Supreme Court stated:

            While sentencing discretion permits consideration of a wide
      range of information relevant to the assessment of punishment,
      we have recognized it must not be exercised with the purpose of
      punishing a successful appeal. Pearce, [supra at 723-725].
      “Due process of law, then, requires that vindictiveness against a
      defendant for having successfully attacked his first conviction
      must play no part in the sentence he receives after a new trial.”
      Id., at 725. “In order to assure the absence of such a
      motivation, we have concluded that whenever a judge imposes a
      more severe sentence upon a defendant after a new trial, the
      reasons for him doing so must affirmatively appear.” Id. at 726.
      ...

            While the Pearce opinion appeared on its face to
      announce a rule of sweeping dimension, . . . its presumption of
      vindictiveness do[es] not apply in every case where a convicted
      defendant receives a higher sentence on retrial. . . . [T]he evil
      the [Pearce ] Court sought to prevent was not the imposition of
      enlarged sentences after a new trial but vindictiveness of a
      sentencing judge.     Because the Pearce presumption may
      operate in the absence of any proof of an improper motive and
      thus . . . block a legitimate response to criminal conduct, we
      have limited its application . . . to circumstances where its
      objectives are thought most efficaciously served[.]          Such
      circumstances are those in which there is a reasonable likelihood
      that the increase in sentence is the product of actual

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      vindictiveness on the part of the sentencing authority. Where
      there is no such reasonable likelihood, the burden remains upon
      the defendant to prove actual vindictiveness.

Smith, supra at 799 (most citations and quotation marks omitted).

      Here, we note first that this is Appellant’s second re-sentencing, and

the trial court actually imposed a shorter conspiracy sentence, below the

mitigated guidelines, than it did at his first re-sentencing hearing. (See id.

(“[T]he sentence we imposed of [twelve]-[twenty-four] years is actually less

than the [seventeen and one-half] to [forty] year sentence imposed on

October 2, 2012 and below the mitigated guidelines.”)).       Also, although

Appellant’s 2016 conspiracy re-sentencing is longer than his original

conspiracy sentence, it was imposed after the Commonwealth’s withdrawal

of the homicide count affected the court’s sentencing scheme. (See Trial Ct.

Op., at 3 (“[A]s the homicide charge was withdrawn, the original sentence of

[five] to [ten] years on the conspiracy charge did not make sense[.]”).

Moreover, Appellant does not identify, and the certified record does not

reveal, any vindictiveness on the part of the trial court other than his bald

claim that, because his new conspiracy sentence is longer than the one

imposed originally, the court necessarily was vindictive.   (See Appellant’s

Brief, at 14-16).

      Based on the foregoing, and our independent review of the certified

record, we conclude that there is no “reasonable likelihood” Appellant’s

sentence is the product of “vindictiveness against [him] for having


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successfully attacked his first conviction[.]”     Smith, supra at 798-99

(citations omitted). Hence, Appellant has not met his burden of proof on his

vindictiveness claim, and we conclude that he has failed to prove that the

trial court abused its discretion in resentencing him. See Glass, supra at

727. Appellant’s first issue lacks merit.

      In his second challenge, Appellant argues that the court “did not

provide factual data or reasoning for the sentence imposed.”         (Appellant’s

Brief, at 16; see id. at 17-18). This issue does not merit relief.

      Pursuant to the sentencing guidelines, a court must consider the

protection of the public, the gravity of the offense, the impact on the victim

and community, and the rehabilitative needs of the defendant.            See 42

Pa.C.S.A. § 9721(b). “Nevertheless, a lengthy discourse on the trial court’s

sentencing philosophy is not required. Rather, the record as a whole must

reflect the court’s reasons and its meaningful consideration of the facts of

the crime and the character of the offender.”             Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citations omitted).

      In this case, before imposing sentence, the trial court observed:

            From the presentence report, it indicated that you are part
      of the city and you were part of the city’s drug and violence
      problem. It indicated that you grew up with drug addicts and
      that you knew what drugs did to the community, and yet you
      continued to engage in selling them.

            We may never know what happened exactly in the alley in
      2009, but we do know that Brandon Granthon is dead and that
      Mrs. Granthon will never have the opportunity to be with him.


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             After looking at the presentence report as well as the
       guidelines, I don’t believe I would be protecting the community if
       I lowered your sentence. You have a history of selling drugs, a
       history of violence, and a history of posing danger to the public.

             The presentence investigation indicated that you have
       developed a passion, and I hope you will continue to do that
       while you’re incarcerated and not lose that passion for dogs.
       That’s something that you actually found pleasure in; the
       problem is, Mr. Granthon will never have that type of pleasure
       because of your actions that day.

             Based on the presentence report, as well as the guidelines
       and the jury convicting you of the various charges, starting with
       criminal [conspiracy] murder, we sentence [Appellant] to [not
       less than twelve nor more than twenty-four] years in [s]tate
       prison.

(N.T. Resentencing, 9/29/16, at 14-15).6

       We conclude that the above reasoning, as well as “the record as a

whole[, ] reflect the court’s reasons and its meaningful consideration of the

facts of the crime and the character of [Appellant].”      Malovich, supra at

1253 (citations omitted).          Therefore, the trial court did not abuse its


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6
   The trial court mistakenly identified the criminal conspiracy count as
criminal attempt. (See N.T. Resentencing, at 15). However, Appellant does
not dispute that the court intended to sentence him on the conspiracy
conviction. (See Information, 1/19/10, at 1-2; Appellant’s Brief, at 18; Trial
Ct. Op., at 3). Additionally, the court misspoke and said that the conspiracy
sentence was not less than twelve nor more than forty-eight years. (See
N.T. Resentencing, 9/29/16, at 15). However, there is no dispute that it
actually sentenced Appellant to a term of incarceration of not less than
twelve nor more than twenty-four years on the charge. (See Resentencing
Order, 9/29/16, at unnumbered page 1; Appellant’s Brief, at 9;
Commonwealth’s Brief, at 8; Trial Ct. Op., at 1).




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discretion in imposing Appellant’s sentence.   See Glass, supra at 727.

Appellant’s second issue lacks merit.

      Judgment of sentence affirmed.

      Judge Lazarus joins the Memorandum.

      President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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