J-S28010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN MICHAEL ALEXANDER                    :
                                               :
                       Appellant               :   No. 148 MDA 2018

           Appeal from the Judgment of Sentence November 1, 2017
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0001893-2016


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

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 29, 2018

       Appellant, Shawn Michael Alexander, appeals from the judgment of

sentence entered on November 1, 2017, following his jury trial convictions for

two counts of theft by unlawful taking.1 We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. The Commonwealth charged Appellant with two counts of theft by

unlawful taking on October 20, 2016 for stealing automobiles in Franklin

County, Pennsylvania.        A trial commenced on September 18, 2017 and the

jury found Appellant guilty of the aforementioned charges. The trial court held

a sentencing hearing on November 1, 2017 and imposed consecutive

sentences of 36 to 84 months of incarceration on each count of theft by

unlawful taking. On November 2, 2017, the trial court filed a statement of

____________________________________________


1   18 Pa.C.S.A. § 3921(a).
J-S28010-18



reasons for imposing sentence. On November 7, 2017, Appellant filed a post-

sentence motion for reconsideration of his sentence. On December 19, 2017,

the trial court denied relief by order and accompanying opinion. This timely

appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

       Did the sentencing court abuse its discretion in sentencing []
       Appellant, when the sentence is outside the sentencing guideline,
       and is manifestly excessive and unreasonable, because the court
       failed to consider the specific and unique circumstances of the
       case and [] Appellant’s background pursuant to the requirements
       of 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9721(d)?

Appellant’s Brief at 9.

       Appellant summarizes his argument as follows:

       [] Appellant in the instant case has a prior record score of four,
       and an offense gravity [s]core of six. The sentencing guidelines
       call for a standard range sentence of fifteen to twenty-one months
       and an aggravated range of twenty-seven months. The sentence
       imposed by the [trial c]ourt of thirty-six to eighty four months, on
       each count, exceeds the aggravated ranges of the sentencing
       guidelines. The sentencing court failed to state adequate reasons
       on the record for this departure from the Pennsylvania
       [s]entencing [g]uidelines which constitutes an abuse of discretion.

Id. at 19.



____________________________________________


2 Appellant filed a notice of appeal on January 16, 2018. On January 22, 2018,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 29, 2018. On January 31, 2018, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a), relying upon its previous decision filed
on December 19, 2017.

                                           -2-
J-S28010-18



      Appellant further avers that the trial court erred by justifying above

guideline sentences based upon the fact that Appellant escaped from an

intermediate punishment program and committed the offenses at issue. Id.

He claims the sentencing court failed to acknowledge that Appellant assumed

responsibility for escaping, pled guilty to the charge of escape, and is currently

serving a term of 9 to thirty-six months of incarceration on that charge. Id.

Appellant further argues that the trial court erroneously considered his prior

thirteen convictions for theft, mainly stolen automobiles, when it already

considered his prior record score in applying the sentencing guidelines. Id.

at 20. Appellant contends that the trial court further erred by considering

Franklin County’s lack of public transportation as an additional reason to

impose sentences outside of the aggravated range, citing the victims’ reliance

on personal transportation. Id. Appellant posits that, “[i]f every sentencing

[j]udge were to impose longer prison terms to residents of rural counties than

to those in urban ones, the resulting disparity in treatment would be precisely

what the sentencing guidelines were designed to prevent.”           Id.    Finally,

Appellant argues that the trial court failed to consider his rehabilitative needs

as a long-term crack addict and that Appellant was unable to work because

he was his father’s caretaker during cancer treatment. Id. at 21.

      “It      is       well-settled       that,      with        regard        to

the discretionary aspects of sentencing, there is no automatic right to

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

(citation omitted). Accordingly,

                                       -3-
J-S28010-18


      [b]efore this Court may reach the merits of a challenge to
      the discretionary aspects of a sentence, we must engage in a four
      part analysis to determine: (1) whether the appeal is timely; (2)
      whether [the a]ppellant preserved his issue; (3) whether [the
      a]ppellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to
      the discretionary aspects of sentence [see Pa.R.A.P. 2119(f); and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. If the
      appeal satisfies each of these four requirements we will then
      proceed to decide the substantive merits of the case.

Id. (original brackets, ellipsis, and citation omitted).

      Here, Appellant filed a timely notice of appeal after preserving his

sentencing claim in a post-sentence motion. He has included a proper Rule

2119(f) statement in his brief. See Appellant’s Brief at 12. Appellant also

presents a substantial question. Antidormi, 84 A.3d at 759 (“This Court has

held that claims that the sentencing court imposed a sentence outside the

standard guidelines without stating adequate reasons on the record presents

a substantial question.”).

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

sentence 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.

      In every case in which the court imposes a sentence for a felony
      or a misdemeanor, the court shall make as a 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. The sentencing

                                      -4-
J-S28010-18


       guidelines are not mandatory, and sentencing courts retain broad
       discretion in sentencing matters, and therefore, may sentence
       defendants outside the guidelines. In every case where the court
       imposes a sentence outside the guidelines adopted by the
       Pennsylvania Commission on Sentencing the court shall provide a
       contemporaneous written statement of the reason or reasons for
       the deviation from the guidelines. However, this requirement is
       satisfied when the judge states his reasons for the sentence on
       the record and in the defendant's presence. Consequently, all that
       a trial court must do to comply with the above procedural
       requirements is to state adequate reasons for the imposition of
       sentence on the record in open court.

       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.[3] Where pre-sentence reports
       exist, we shall presume that the sentencing judge was aware of
       relevant information regarding the defendant's character and
       weighed those considerations along with mitigating statutory
       factors. A pre-sentence report constitutes the record and speaks
       for itself.

Id. at 760–761 (internal citations, quotations, original brackets and ellipsis

omitted).

       Here, we initially note that the trial court had the benefit of a

pre-sentence investigation report. Thus, the trial court was aware of

Appellant’s relevant personal background. We presume the trial court

considered it.




____________________________________________


3 Moreover, “[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.” 42 Pa.C.S.A. § 9721(b).

                                           -5-
J-S28010-18



      Furthermore, at the sentencing hearing, the trial court noted that prior

rehabilitation efforts with Appellant had failed. N.T., 11/1/2017, at 14-15.

The trial court recounted Appellant’s eight-year criminal record, spanning

most of Appellant’s adult life, resulted in 15 criminal convictions and none of

his past punishments “resulted in [Appellant] conforming [his] conduct to

comply with the law.” Id. at 15. Thus, while the trial court cited Appellant’s

criminal record, which also factored into his prior record score, the trial court

looked specifically at the pattern of behavior in determining that past

rehabilitative efforts with Appellant failed. Moreover, the trial court noted that

Appellant escaped from an “intensive treatment program” and “committed

these new crimes.” Trial Court Opinion, 12/19/2017, at 13. The trial court

stated that, while it was “laudable” Appellant took responsibility for escaping

by pleading guilty, that fact did not “mitigate the additional criminal conduct

for which [Appellant] was proven guilty beyond a reasonable doubt at trial

here, namely the theft of two motor vehicles.”         Id. at 10 (emphasis in

original). Hence, the trial court concluded that Appellant did not avail himself

of prior rehabilitation opportunities and above guideline sentences were

appropriate in this case.      Based upon our standard of review and our

examination of the record, we agree with the trial court’s assessment

regarding Appellant’s rehabilitative needs.

      The trial court also heard testimony from Appellant at the sentencing

hearing regarding his employment history.       Appellant, 28-years-old at the

time of sentencing, admitted that he only held one job in his life, his

                                      -6-
J-S28010-18



work-release warehouse job where he escaped. N.T., 11/1/2017, at 10-11.

At this point, Appellant explained that “he went a couple of years without

working because [he] was living with [his father] at the time helping take care

of him.” Id. at 11. The trial court, however, also recognized that Appellant

never held employment outside of confinement, regardless of whether he was

caring for his father. Id. at 11. Thus, the trial court reflected on Appellant’s

role as caregiver at the time of sentencing, but ultimately determined his need

for rehabilitation outweighed this consideration.     We discern no abuse of

discretion.

      The trial court also concluded that sentences above the guidelines were

appropriate for the protection of the public. The trial court recognized that

Franklin County residents are without public transportation and rely upon their

personal vehicles for their employment, medical needs, and any emergencies

and when Appellant stole two vehicles those thefts impacted the lives of the

victims.   Id. at 16. The trial court concluded that Appellant’s “seven prior

convictions for unauthorized use of a motor vehicle[,] established a pattern of

complete disregard for other citizens’ modes of transportation.” Id. at 15.

Based upon the foregoing, we determine that the trial court appropriately

balanced the protection of the public with the particular circumstances of the

offenses and the character of the defendant, when imposing Appellant’s

sentences. In deviating from the sentencing guidelines, the trial court placed

its reasons for doing so on the record as required.




                                     -7-
J-S28010-18




     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2018




                                 -8-
