Opinion
J-S75037-18 No. 3627 EDA 2017
01-24-2019
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY C. CAMPBELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 2, 2017 in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009388-2016, CP-51-CR-0009390-2016, CP-51-CR-0009397-2016, CP-51-CR-0009405-2016, CP-51-CR-0009407-2016, CP-51-CR-0009409-2016, CP-51-CR-0009415-2016, CP-51-CR-0009777-2016, CP-51-CR-0010115-2016 BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Anthony C. Campbell ("Campbell") appeals from the judgment of sentence entered following his non-negotiated guilty plea to multiple counts of robbery (threat of serious bodily injury), burglary, criminal conspiracy, carrying a firearms without a license, possession of an instrument of crime, false imprisonment, aggravated assault, theft and attempted burglary. We affirm in part and vacate in part.
In its Opinion, the trial court summarized the facts underlying Campbell's guilty pleas, which we adopt for the purpose of this appeal. See Trial Court Opinion, 1/11/18, at 4-6.
Campbell entered non-negotiated guilty pleas to the above charges, in relation to a series of home invasions that took place in Philadelphia, Pennsylvania. As a result of his guilty pleas, the trial court sentenced Campbell to an aggregate prison term of 30-60 years. Campbell filed a post-sentence Motion, which the trial court denied. Thereafter, Campbell filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
In this appeal, Campbell challenges the discretionary aspects of his sentence. Brief for Appellant at 10. Specifically, Campbell claims that, although he was sentenced within the statutory limits, the trial court "erred in double-counting [his] prior record score and offense gravity score." Id.
"A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right." Commonwealth v. Grays , 167 A.3d 793, 815 (Pa. Super. 2017). Prior to reaching the merits of a discretionary sentencing issue,
[w]e 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).Grays , 167 A.3d at 815-16 (citation omitted).
Here, Campbell timely filed his Notice of Appeal, preserved his claim in a post-sentence Motion, included in his brief a Pa.R.A.P. 2119(f) Statement of the reasons he relies upon for allowance of appeal, and has raised a substantial question that his sentence is inappropriate under the Sentencing Code. See Pa.R.A.P. 2119(f); Commonwealth v. Goggins , 748 A.2d 721, 732 (Pa. Super. 2000) (en banc) (stating that a claim that the court double-counted factors included in the sentencing guidelines raises a substantial question). Accordingly, we will address Campbell's sentencing challenge.
Campbell argues that the trial court improperly double-counted Campbell's prior record, when imposing his sentence. Brief for Appellant at 12. Campbell argues that, because the trial court is required to consider the sentencing guidelines, it may not double-count his prior record score or offense gravity score. Id. According to Campbell, "beyond the fact that previous convictions have had the effect of increasing a defendant's prior record score, the defendant's prior record does not provide a basis for imposing an aggravated[-]range sentence because those factors have already been taken into account by the guidelines range itself." Id. Campbell directs our attention to the trial court's statement, at sentencing, wherein the court took into account Campbell's age at the time he perpetrated the offenses, the predatory nature of the crimes, and his prior record score. Id. at 14. Campbell points out the trial court's recitation of Campbell's prior arrests, probation and parole violations in deciding to sentence Campbell within the aggravated range of the guidelines. Id.
It is undisputed that 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. Commonwealth v. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006).
When imposing a sentence, the sentencing court must consider "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). As we have stated, "a court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa. Super. 2002). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Id.
Upon our review, we do not agree that the trial court improperly "double-counted" certain factors at sentencing. Rather, as the trial court explained in its Opinion, upon review of Campbell's pre-sentence investigation report, the court properly exercised its discretion in sentencing Campbell, and imposing consecutive sentences for some of the offenses. See Trial Court Opinion, 1/11/18, at 7-10. We agree with the sound reasoning of the trial court, and affirm on the basis of the trial court's Opinion with regard to Campbell's claim. See id.
In its Opinion, the trial court additionally states that it imposed an illegal sentence of five to ten years in prison for each of Campbell's convictions for firearms not to be carried without a license. Trial Court Opinion, 1/11/18, at 3 n.4. Our review of the record discloses that for his conviction of carrying a firearm without a license, a third-degree felony, the trial court sentenced Campbell to five to ten years in prison. However, our legislature has provided that a felony of the third degree carries a term of imprisonment "which shall be fixed by the court at not more than seven years." 18 Pa.C.S.A. § 1103(3). Thus, the trial court's sentences for each of Campbell's convictions of firearms not to be carried without a license are illegal. We therefore vacate those sentences. Because our resolution does not disrupt the trial court's sentencing scheme, we need not remand for resentencing on those charges. See Commonwealth v. Melvin , 103 A.3d 1, 57 (Pa. Super. 2014) (declining to remand for resentencing where the Superior Court's amendment to the sentence did not disrupt the trial court's sentencing scheme).
In its Opinion, the trial court explained that,
[t]he concurrent nature of each illegal charge does not alter the sentence scheme for any individual docketing number or [Campbell's] total sentence. Had this [c]ourt retained jurisdiction, it would have sua sponte vacated its sentence on each charge. Consequently, this [c]ourt does not see a need for remand[,] and would instead have the illegal sentences vacated.
Judgment of sentence affirmed in part, and vacated in part. Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/24/19
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Trial Court Opinion, 1/11/18, at 3 n.4.