J-S09011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAMES EDWARD LATTIMORE

                         Appellant                 No. 1099 MDA 2015


          Appeal from the Judgment of Sentence December 23, 2014
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001493-2013


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 18, 2016

      Appellant, James Edward Lattimore, appeals from the judgment of

sentence entered after he pled guilty to one count of burglary of a home

with a person inside. Lattimore contends that the trial court abused its

discretion in several respects during sentencing. After careful review, we

conclude that none of Lattimore’s arguments merit relief, and therefore

affirm.

      Lattimore was originally charged with 10 crimes arising from a daylight

break-in of a residence in Roaring Brook Township.       At the time of the

break-in, a mother and her teenaged son were inside the residence.

Pursuant to a negotiated agreement, Lattimore pled guilty to one count of

burglary – overnight accommodation, person present. Slightly over a month
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later, the trial court sentenced Lattimore to term of imprisonment of six to

twelve years.

     Lattimore filed a timely motion for reconsideration of sentence.           On

December 30, 2014, the trial court entered an order denying Lattimore’s

motion in all aspects save his challenge to the amount of restitution

imposed.     In May 2015, Lattimore and the Commonwealth agreed to an

amount of restitution, and the trial court entered an order revising the

amount of restitution imposed. This timely appeal followed.

     On appeal, Lattimore raises three challenges to the trial court’s

exercise    of   discretion   in   imposing   sentence.   “A   challenge   to   the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).


     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

     [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).




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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Lattimore filed a timely appeal and raised the challenges

presented on appeal in a post-sentence motion. Lattimore’s appellate brief

also contains the requisite Rule 2119(f) concise statement, in which he

provides arguments supporting his contention that he has raised three

substantial questions.

      “A substantial question will be found where an appellant 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

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted).    “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”   Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013) (citation omitted).

      We will address Lattimore’s issues in sequence. In his first two issues,

he argues that the trial court erred in calculating his prior record score. A

claim that a trial court miscalculated the defendant’s prior record score

raises a substantial question. See Commonwealth v. Johnson, 758 A.2d

1214, 1216 (Pa. Super. 2000).      We therefore turn to the merits of this

argument.


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       Lattimore contends that the trial court erred in calculating his prior

record score in two respects. First, that it improperly counted a conviction

for which the sentence imposed was entirely concurrent to another sentence.

See, e.g., Commonwealth v. Spenny, 128 A.3d 234, 242 (Pa. Super.

2015). Second, Lattimore contends that the trial court improperly graded

New Jersey convictions for aggravated assault with bodily injury, theft,

forgery, and obstructing administration of law. Unfortunately, a copy of the

sentence guideline form utilized by the trial court in calculating sentence is

not included in the certified record.1 Our review of the record does not reveal

any other document revealing the calculations utilized by the trial court in

imposing sentence.

       “It is the obligation of the appellant to make sure that the record

forwarded to an appellate court contains those documents necessary to

allow a complete and judicious assessment of the issues raised on appeal.”

Everett     Cash    Mutual      Insurance      Company   v.   T.H.E.   Insurance

Company, 804 A.2d 31, 34 (Pa. Super. 2002) (quoting Hrinkevich v.

Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)). Ordinarily, we can only

consider documents which are part of the certified record. See Roth Cash

Register Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223

(Pa. Super. 2005). Absent the sentence guideline form, we cannot review
____________________________________________


1
  There is a docket entry for this form, but the form was not numbered or
included in the certified record forwarded to this Court.



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the calculations utilized by the trial court in imposing sentence. These

arguments are therefore waived.

      In his final argument, Lattimore contends that the trial court relied

upon impermissible factors in imposing sentence. Specifically, he first argues

that the trial court utilized his prior criminal record as a reason to impose an

aggravated range sentence. He also contends that the trial court improperly

relied upon the fact that a teenaged minor was in the home Lattimore

burglarized to impose an aggravated range sentence, as he believes that

such a fact is already included as an element of the crime. A claim that a

sentencing court imposed a sentence outside the standard guidelines without

stating adequate reasons on the record presents a substantial question. See

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)

(citation omitted). Therefore, we conclude that Lattimore has presented a

substantial question.

      Both of Lattimore’s arguments challenge the imposition of terms of

imprisonment in the aggravated range of the sentencing guidelines. For such

challenges, the following standard of review has been set forth.

      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.




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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).

        It is well-established that Pennsylvania has an indeterminate guided

sentencing scheme. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117

(Pa. 2007). The sentencing judge is required to consider the sentencing

guidelines that have been adopted by the Legislature. See 42 Pa.C.S.A. §

9721(b). It is recognized however that the sentencing guidelines are purely

advisory in nature and are merely one factor among many that the court

must consider in imposing a sentence. See Yuhasz, 923 A.2d at 1118. “[A]

trial court judge has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at

1275.

        It is impermissible for a court to consider factors already included

within the sentencing guidelines as the sole reason for increasing a sentence

into the aggravated range. See Commonwealth v. Simpson, 829 A.2d

334, 339 (Pa. Super. 2003). Specifically, “factors already used in Guideline

computations, including inter alia, prior convictions, may not be used to

justify an aggravated sentence.” Commonwealth v. McNabb, 819 A.2d 54,

57 (Pa. Super. 2003) (citation omitted).

        In imposing sentence, the trial court provided the following reasoning.

        This sentence, sir, is in the aggravated range, and the reasons
        for this sentence are, this sentence is consistent with the

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     protection of the community, this sentence recognizes the
     serious nature of this offense and the gravity of this offense, this
     sentence recognizes the adult criminal history that I just had the
     opportunity to discuss with you on the record demonstrating that
     in the past 15 years until your arrest in 2013 that you were
     either incarcerated or out on the street for a very short period of
     time.

     It does appear to me, sir, that during the past 14, 15, 16 years
     you have failed to rehabilitate yourself when offered the
     opportunity for parole and/or probation.

     The last sentence[s] imposed were in 2010 … they were imposed
     within three years, three years and a few days, of this new
     offense.

     While the crime of burglary, the one that you pled guilty to and
     I’m sentencing you here today contemplates the home being
     occupied at the time of the crime, in this case there were two
     victims, a mother and her 16 year old son, this sentence takes
     into consideration the fact there were multiple victims, the age
     of the son, that he was a victim who locked himself in a closet
     with his mother while they called for help.

     The sentence also takes into consideration the very serious
     impact this crime has had on them, and they have been robbed
     of any peace in their home. That’s why in Pennsylvania, sir,
     burglary of an occupied dwelling is, as the prosecutor stated,
     one of the highest crimes you can plead guilty to or be convicted
     of.

     The court is also imposing this sentence because there is a – this
     crime, the nature of this crime, was brazen and very frightening.
     I can only imagine how terrifying it was – must have been for
     the victims to be locked in a closet while an unknown individual
     kicked in the door to their residence, entered the home and was
     rummaging around until the crime was interrupted by members
     of society.

N.T., Sentencing, 12/23/14, at 42-44.

     We conclude that the trial court did not consider any improper factors

in imposing sentence.   First, while the trial court did consider Lattimore’s

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prior criminal history in a negative light, it conditioned this consideration on

the fact that Lattimore had rarely been out of jail for the past 15 years. This

is a circumstance distinct from the purely mechanical consideration of a prior

record score. Furthermore, the trial court noted that this 15 years of history

indicated that Lattimore had repeatedly and consistently failed to rehabilitate

himself in any manner.

      Similarly, the trial court’s consideration of the presence of the teenage

son in the home was not consistent with the element of the crime to which

Lattimore had pled guilty.    While Lattimore pled guilty to burglary of an

occupied home, the trial court emphasized the fact that there were actually

two victims inside the home at the time. Furthermore, the trial court focused

on the terror caused to the minor by the brazen home invasion.           These

factors are not elements of the crime Lattimore pled guilty to, and therefore

are appropriate considerations in imposing an aggravated range sentence.

We therefore conclude that Lattimore’s final argument does not merit relief

on appeal.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016

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