Opinion
J. S48018/16 No. 1394 WDA 2015
09-16-2016
COMMONWEALTH OF PENNSYLVANIA v. ANTHIAN DARALL GOEHRING, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 6, 2015
In the Court of Common Pleas of Washington County
Criminal Division No(s): CP-63-CR-0000897-2014 BEFORE: BOWES, DUBOW, and MUSMANNO, JJ. MEMORANDUM BY DUBOW, J.:
Appellant, Anthian Darall Goehring, appeals from the Judgment of Sentence entered in the Court of Common Pleas of Washington County following Appellant's open guilty plea to Third-Degree Murder, Conspiracy to Commit Murder, and Robbery. On July 6, 2015, the trial court sentenced Appellant to an aggregate term of thirty (30) to sixty (60) years' incarceration. We affirm on the basis of the trial court's Opinion.
18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 903(c); 18 Pa.C.S. § 3701(a)(1)(i), respectively.
The trial court sentenced Appellant as follows: for count 1, Third-Degree Murder, twenty (20) to forty (40) years' incarceration; for count 3, Conspiracy to Commit Murder, ten (10) to twenty (20) years' incarceration to be served consecutive to the period of incarceration imposed at count 1; for count 7, Robbery, ten (10) to twenty (20) years' incarceration to be served concurrent to the period of incarceration imposed at count 1.
The trial court set forth the relevant factual history as follows:
[O]n March 31, 2014, the police responded to a report of a shooting at 450 Chestnut Street, Apartment B[.]Trial Court Opinion, dated 2/9/16, at 4.
Upon their arrival, they noticed multiple gunshots through the door. They also observed a 10 year old [girl] had been struck by two shots. She was subsequently taken to Washington Hospital and pronounced dead. The coroner determined that the cause of death was the gun shooting.
The investigation revealed that the four Defendants proceeded to that apartment on the morning of March 31, two of them remained in the car, that being Mr. White and Mr. Thomas. [Appellant] and Mr. Cochran proceeded up the steps and discharged firearms into the doors.
On April 17, 2015, Appellant entered a counseled open guilty plea and the trial court sentenced him on July 6, 2015. Appellant filed a Post-Sentence Motion on July 13, 2015, which the trial court denied on August 14, 2015. Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Did the trial court abuse its discretion and exercise judgment that was manifestly unreasonable, when it sentenced [Appellant] to an aggregate period of incarceration of no less than thirty (30) years to no more than sixty (60) years, which sentence is disproportionate to [Appellant]'s role in the crime, excessive, and fails to take into consideration [Appellant]'s cooperation against his co-defendants, along with his character and history.Appellant's Brief at 4.
The issue Appellant raises on appeal challenges the discretionary aspects of his sentence. It is well settled that there is no automatic right to appeal the discretionary aspects of a sentence. Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010). Rather, to reach the merits of a discretionary sentencing issue, this Court must conduct a four-part analysis to determine:
(1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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.Id. (citation omitted).
Appellant filed a timely Notice of Appeal, properly preserved the issue, and complied with briefing requirements under Pa.R.A.P. 2119(f). Thus, we must determine whether Appellant raised a substantial question for our review.
A substantial question exists when "the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (citations and quotation marks omitted).
Here, Appellant avers that the sentence is "unreasonable and unduly excessive" because the trial court imposed "consecutive sentences" and failed "to properly account for the appellant's cooperation against his co-defendants, and his history and characteristics and instead concentrates heavily on the nature and circumstances of the offense." Appellant's Brief at 9. This claim presents a substantial question for review. See Commonwealth v. Riggs , 63 A.3d 780, 786 (Pa. Super. 2012) (holding an allegation that a sentence fails to consider relevant sentencing criteria violates a fundamental norm underlying the sentencing process and raises a substantial question); Commonwealth v. Dodge , 77 A.3d 1263, 1273 (Pa. Super. 2013) (holding defendant's challenge to the consecutive nature of his sentence raised a substantial question).
Having determined that Appellant's issue on appeal raises a substantial question for review, we turn to the merits of Appellant's sentencing challenge.
"In reviewing a challenge to the discretionary aspects of sentencing, we evaluate the court's decision under an abuse of discretion standard." Dodge , supra at 1274 (citation omitted). Additionally, "this Court's review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d)." Id. (citation and quotation marks omitted).
Section 9781(c) dictates that this Court should vacate a sentence if it finds the sentence was within the sentencing guidelines but the guidelines were applied erroneously or the case involves circumstances where application of the guidelines would be unreasonable. See 42 Pa.C.S. § 9781(c). Also, this Court should vacate a sentence if the sentence is outside the guidelines and the sentence is unreasonable. See id.
In reviewing the record, this Court must consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant.42 Pa.C.S. § 9781(d).
(2) the opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) the findings upon which the sentence was based.
(4) the guidelines promulgated by the commission.
The Honorable Edward J. Borkowski, who presided over the sentencing hearing, has authored a thorough and well-reasoned Opinion, citing to the record, relevant case law, and applicable statutes in addressing Appellant's challenge to the discretionary aspects of his sentence. After a careful review of Appellant's arguments and the record, we affirm on the basis of the trial court's Opinion, which concluded that: (1) the trial court did not abuse its discretion in fashioning a sentence for Appellant, and (2) the trial court considered all relevant factors, including Appellant's presentence report, Appellant's history, Appellant's apology, and the fact that Appellant cooperated with the police in investigating the homicide. See Trial Ct. Op. at 4-8.
The parties are instructed to attach a copy of the trial court's Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/16/2016
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